Elomar v R
[2014] NSWCCA 303
•12 December 2014
Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 Hearing dates: 19 August 2013; 20 August 2013; 21 August 2013; 22 August 2013; 26 August 2013; 27 August 2013 Decision date: 12 December 2014 Before: Bathurst CJ; Hoeben CJ at CL; Simpson J Decision: Mohamed Ali Elomar
(1) Appeal against conviction dismissed;
(2) Leave granted to appeal against sentence;
(3) Appeal dismissed.
Abdul Rhakib Hasan
(1) Appeal against conviction dismissed;
(2) Leave granted to appeal against sentence;
(3) Appeal dismissed.
Khaled Cheikho
(1) Appeal against conviction dismissed;
(2) Leave granted to appeal against sentence;
(3) Appeal dismissed.
Moustafa Cheikho
(1) Appeal against conviction dismissed;
(2) Leave granted to appeal against sentence;
(3) Appeal dismissed.
Mohammed Omar Jamal
Catchwords: CRIMINAL LAW - appeal - conviction - whether miscarriage of justice - evidence admitted - evidence linking accused with other offenders found guilty - publicity before trial - publicity not directly related to accused - relevancy of evidence - probative value of evidence
CRIMINAL LAW - appeal - conviction - whether miscarriage of justice - evidence admitted - operation of co-conspirators' rule - whether evidence admissible only if made in furtherance of conspiracy - operation of s87(1)(c) Evidence Act 1995 (NSW)
CRIMINAL LAW - appeal - conviction - whether primary judge erred in refusing to discharge jury upon application - crown consented to discharge - whether jury lost its objectivity
CRIMINAL LAW - appeal - conviction - whether primary judge erred in admitting evidence - identification evidence - assessment of probative value - impermissible to consider credibility or reliability of witness when assessing probative value
CRIMINAL LAW - appeal - conviction - whether primary judge erred in admitting evidence - whether evidence tendency evidence - s 97 Evidence Act 1995 (NSW) - evidence of state of mind - different from evidence of conduct - not necessarily a series of intermittent events, feelings or ideas - difference between facts to be proved by tendency evidence and inferences drawn from circumstantial evidence
CRIMINAL LAW -appeal - conviction - whether primary judge erred in refusing separate trials - consideration of prejudicial effect evidence of one accused had on others - effect of terrorist activity subsequent to decision to refuse separate trials
CRIMINAL LAW - appeal - conviction - whether primary judge erred in admitting evidence - gruesome imagery - whether erred in assuming material had been accessed by accused - inference of possession of large quantities of material - relevance of emotional responses from jury upon viewing evidence
CRIMINAL LAW - appeal - conviction - whether primary judge erred in refusing to dismiss charge of conspiracy - s 11.5(6) Criminal Code 1995 (Cth) - exercise of judicial discretion - no disadvantage or injustice identified - alternative of joint criminal enterprise of multiple substantive offences - whether charge of conspiracy was an added layer of complexity
CRIMINAL LAW - appeal - conviction - whether miscarriage of justice - Crown prosecutor's final address - invitation to jury to draw inferences - whether necessary evidentiary basis for an inference to be drawn existed - absence of complaint - adequate directions as to the drawing of inferences - whether invitation to jury reversed the onus of proof - rhetorical questions - whether rendered trial unfair - consideration of context, framing and number of questions
CRIMINAL LAW - appeal - conviction - whether primary judge erred in direction - characteristics of terrorist act - s 100.1(1) and (2) Criminal Code 1995 (Cth) - whether direction implied "advocacy, protest, dissent or industrial action" had to be "legitimate" or "genuine" - context of oral direction
CRIMINAL LAW - appeal - conviction - whether verdict unreasonable - consideration of evidence - whether open to the jury to convict accused as participant in conspiracy - whether evidence established co-conspirators shared a common goal
CRIMINAL LAW - appeal - sentencing - whether primary judge erred in sentencing of accused in comparison to sentences for co-accused - principles of parity - level of criminality relatively similar to other accused - distinctive features identified by primary judge
CRIMINAL LAW - appeal - sentencing - whether primary judge's factual findings justified - whether evidential basis to draw inferences
CRIMINAL LAW - appeal - sentencing - whether primary judge considered element of offence as aggravating feature of offence - placing primary judge's comments in context - identification of distinctive features of offending
CRIMINAL LAW - appeal - sentencing - whether sufficient weight given to custodial conditions and cultural isolation - weight dependent upon other factors - exercise of discretion - whether error shown
CRIMINAL LAW - appeal - sentencing - whether sentence manifestly excessive - nature of offending - conspiracy to do acts in preparation of a terrorist act - interrupted before harm - no target selected - damage to property not to people - acts likely to endanger lives of innocent members of the public
CRIMINAL LAW - appeal - sentencing - whether primary judge considered cultural practice as aggravating feature - whether belief that obliged to engage in acts of terrorism to defend religion is a form of cultural practice
CRIMINAL LAW - appeal - sentencing - whether primary judge erred in assessing prospects of rehabilitation - consideration of implications of conviction for conspiracy and evidence for conspiracy when assessing prospects of rehabilitation and state of mind of accused
CRIMINAL LAW - appeal - sentencing - whether primary judge erred in assessing prospects of rehabilitation - significance of failure of accused to give evidence - importance of mental element of offence - whether primary judge considered youth of accused
CRIMINAL LAW - appeal - sentencing - whether primary judge erred in sentencing of accused in comparison to sentences for co-accused - principles of parity - significance of nature of offence - sentenced for participation in conspiracy - specific acts of co-conspirators attributable to accused - significant level of criminality - differences reflected in sentenceLegislation Cited: Crimes Act 1914 (Cth), ss 16A(1), 16(2A)(b) and 19AG(3)(a)
Criminal Appeal Act 1912 (NSW), ss 5F and 6
Criminal Code (Cth), ss 11.5, 100.1, 101.1(1) and 101.6
Evidence Act 1995 (NSW), ss 55, 56, 81, 87, 95, 97, 101, 137, Pt 3.2 and Pt 3.4
Jury Act 1977 (NSW), ss 19(2) and 55D
Surveillances Devices Act 2007 (NSW)
Telecommunications (Interception and Access) Act 1979 (Cth)Cases Cited: Ahern v The Queen [1988] HCA 39; 165 CLR 87
Barton v The Queen [1980] HCA 48; 147 CLR 75
Benbrika v R; Joud v R; Sayadi v R; Merhi v R; Ahmet Raad v R; Ezzit Raad v R; Haddara v R [2010] VSCA 281; 29 VR 593
Chamberlain v The Queen [No 2] [1984] HCA 7; 153 CLR 521
Cheikho v R (NSWCCA, 8 October 2008, unreported)
Chung v The Queen [2007] NSWCCA 231; 175 A Crim R 579
Crofts v The Queen [1996] HCA 22; 186 CLR 427
Diesing v Regina [2007] NSWCCA 326
Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483
Gardiner v The Queen [2006] NSWCCA 190; 162 A Crim R 233
Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317
Gilbert v The Queen [2000] HCA 15; 201 CLR 414
House v The King [1936] HCA 40; 55 CLR 499
Jago v The District Court of New South Wales [1989] HCA 46; 168 CLR 23
James v The Queen [2014] HCA 6; 88 ALJR 427
Lane v R [2013] NSWCCA 317
Libke v The Queen [2007] HCA 30; 230 CLR 559
Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265
Lodhi v The Queen [2006] NSWCCA 121; 199 FLR 303
Lodhi v The Queen [2007] NSWCCA 360; 179 A Crim R 470
M v The Queen [1994] HCA 63; 181 CLR 487
Magaming v R [2013] HCA 40; 302 ALR 461
Maxwell v The Queen [1996] HCA 46; 184 CLR 501
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
R v B [2008] NSWCCA 85; 76 NSWLR 533
R v Benbrika (Ruling No 15) [2007] VSC 545
R v Benbrika (Ruling No 19) [2008] VSC 48
R v Benbrika [2009] VSC 21; 222 FLR 433
R v Bikic [2000] NSWCCA 106; 112 A Crim R 300
R v Blick [2000] NSWCCA 61; 111 A Crim R 326
R v Cook [2004] NSWCCA 52
R v Elomar; R v Hasan; R v Cheikho; R v Cheikho; R v Jamal [2010] NSWSC 10; 264 ALR 759
R v El-Kotob [2002] VSCA 109; 4 VR 546
R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
R v Jamal [2008] NSWCCA 177; 72 NSWLR 258
R v Lansdell (NSWCCA, 22 May 1995, unreported)
R v Louden (1995) 37 NSWLR 683
R v Macraild (NSWCCA, 18 December 1997, unreported)
R v Marsland (NSWCCA, 17 July 1991, unreported)
R v Middis (NSWSC, 27 March 1991, unreported)
R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304
R v Mundine [2008] NSWCCA 55; 182 A Crim R 302
R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
R v Rugari [2001] NSWCCA 64; 122 A Crim R 1
R v Saik [2007] 1 AC 18
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
R v Shepherd (1988) 37 A Crim R 303
R v Sophear Em [2003] NSWCCA 374
R v Suteski [2002] NSWCCA 509; 56 NSWLR 182
R v XY [2013] NSWCCA 121; 84 NSWLR 363
R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520
R (Cth) v Baladjam; R (Cth) v Cheikho; R (Cth) v Cheikho; R (Cth) v Elomar; R (Cth) v Hasan; R (Cth) v Jamal; R (Cth) v Mulahalilovic; R (Cth) v Sharrouf; R (Cth) v Touma [2008] NSWSC 714; 270 ALR 92
R (Cth) v Baladjam; R (Cth) v Cheikho; R (Cth) v Cheikho; R (Cth) v Elomar; R (Cth) v Hasan; R (Cth) v Jamal; R (Cth) v Mulahalilovic; R (Cth) v Sharrouf; R (Cth) v Touma (No 4) [2008] NSWSC 726; 270 ALR 106
R (Cth) v Baladjam; R (Cth) v Cheikho; R (Cth) v Cheikho; R (Cth) v Elomar; R (Cth) v Hasan; R (Cth) v Jamal; R (Cth) v Mulahalilovic; R (Cth) v Sharrouf; R (Cth) v Touma (No 38) [2008] NSWSC 1458; 270 ALR 187
Regina v CE [2005] NSWCCA 326
Regina v Duncan and Perre [2004] NSWCCA 431
Regina v Pham [2004] NSWCCA 190
Regina v Totten [2003] NSWCCA 207
Regina (C'Wealth) v Baladjam [No 7] [2008] NSWSC 756
Regina (C'Wealth) v Baladjam [No 19] [2008] NSWSC 1441
Regina (C'Wealth) v Baladjam [No 49] [2008] NSWSC 1468
Regina (C'Wealth) v Baladjam & Ors [No 50] (NSWSC, Whealy J, 2 October 2008, unreported)
Regina (C'Wealth) v Baladjam & Ors [No 59] (NSWSC, Whealy J, 10 November 2008, unreported)
Regina (C'Wealth) v Baladjam (NSWSC, Whealy J, 7 April 2009, unreported)
Regina (C'Wealth) v Elomar [No 4] [2008] NSWSC 1444
Regina (C'Wealth) v Elomar [No 12] [2009] NSWSC 448
Regina (C'Wealth) v Elomar [No 27] [2009] NSWSC 985
Regina (C'Wealth) v Elomar & Ors [No 13] (NSWSC, Whealy J, 20 March 2009, unreported)
Regina (C'Wealth) v Mulahalilovic [2009] NSWSC 1010
Regina (C'Wealth) v Sharrouf [2009] NSWSC 1002
Regina (C'Wealth) v Touma [2008] NSWSC 1475
RG v R [2010] NSWCCA 173
Roach v The Queen [2011] HCA 12; 242 CLR 610
RWC v R [2010] NSWCCA 332
SKA v The Queen [2011] HCA 13; 243 CLR 400
Skaf, Bilal v R; Skaf, Mohammed v R [2008] NSWCCA 303
The Queen v Glennon [1992] HCA 16; 173 CLR 592
The Queen v Hoar [1981] HCA 67; 148 CLR 32
The King and the Attorney-General of the Commonwealth v The Associated Northern Collieries (the Coal-Vend Case) [1911] HCA 73; 14 CLR 387
Tripodi v The Queen [1961] HCA 22; 104 CLR 1
Tu v The Queen [2011] NSWCCA 31; 205 A Crim R 566
Tyler v The Queen; R v Chalmers [2007] NSWCCA 247;173 A Crim R 458
Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
Velkoski v The Queen [2014] VSCA 121
Webb v The Queen; Hay v The Queen [1994] HCA 30; 181 CLR 41
Whitehorn v The Queen [1983] HCA 42; 152 CLR 657
Wood v The Queen [2012] NSWCCA 21; 84 NSWLR 581Category: Principal judgment Parties: Mohamed Elomar
Abdul Rhakib Hasan
Khaled Cheikho
Moustafa Cheikho
Mohammed Omar JamalRepresentation: Counsel:
D G Dalton SC / E Ozen (Elomar)
T A Game SC S F Beckett (Hasan)
G R James AM QC / P D Lange (Khaled Cheikho)
M Wigney SC / I H Nash (Moustafa Cheikho)
G Scragg / D Carroll (Jamal)
W Abraham QC / S McNaughton SC/ E James (Commonwealth Director of Public Prosecutions)
K Stern QC (Attorney General)
Solicitors:
File Number(s): 2007/2399; 2007/2400; 2007/2395; 2007/2398; 2007/2452 Decision under appeal
- Jurisdiction:
- 9111
- Citation:
- R v Elomar; R v Hasan; R v Cheikho; R v Cheikho; R v Jamal [2010] NSWSC 10; (2010) 264 ALR 759
- Before:
- Whealy J
- File Number(s):
- 2007/2399; 2007/2400; 2007/2395; 2007/2398; 2007/2452
Judgment
Heading
Par
INTRODUCTION
[1]
The indictment
[13]
An overview of the Crown case
[16]
Some relevant procedural chronology
[30]
The evidence in the Crown case
[60]
Category (i) Physical conduct of the appellants, and of others alleged to have been involved in the conspiracy
[67]
Category (ii) Possession by the appellants (and others) of extremist Islamic literature
[79]
Sub-category (a): "Jidah" documents and images
[80]
Sub-category (b): Documents relating to martyrdom
[85]
Sub-category (c): Documents and images about insurgencies in Afghanistan, Bosnia, Chechnya, Iraq and Kashmir
[90]
Sub-category (d): Documents about Sharia law and Western legal and political systems
[94]
Sub-category (e): Documents critical of the United States and Israel
[98]
Sub-category (f): Documents and images about the terrorist attacks in America on 11 September 2001
[99]
Sub-category (g): Training and instructional documents and images
[104]
Sub-category (h): Manuals on explosives and other relevant topics
[105]
Category (iii): Possession of training and instructional literature
[108]
Category (iv): Possession of instructional material relevant to the manufacture and use of explosive devices
[110]
Category (v): Acquisition and possession (and attempted acquisition and possession) of chemicals and other items suitable for use in the manufacture and detonation of explosive devices
[113]
Category (vi): Acquisition and possession of firearms and ammunition
[114]
Category (vii): Acquisition, possession and use of numerous mobile telephones registered in false names
[115]
Category (viii): Association by the appellants with each other (and with others)
[118]
Category (ix): Use of concealment and counter-surveillance techniques
[125]
Category (x): "the Melbourne evidence"
[127]
THE APPEALS AGAINST CONVICTION
[152]
Grounds of appeal
[152]
Grounds 1 and 2 (Hasan), Ground 1 (Elomar): "the Melbourne evidence"
[169]
Analysis
[197]
Issue (i): Effect of publicity
[197]
Issue (ii): "the maximum damage conversation"
[218]
Relevance
[239]
Did the probative value of the evidence outweigh the danger of unfair prejudice?
[247]
Was the evidence tendency evidence?
[253]
Issue (iii): Was the Melbourne evidence as a whole properly admitted?
[260]
Ground 2 (Elomar): Acts and declarations of alleged co-conspirators
[263]
The co-conspirators' rule
[272]
Admissions
[285]
Ground 3 (Hasan): "the car park incident"
[292]
The submissions of the appellants
[317]
Resolution
[318]
Ground 4 (Hasan), Grounds 1-2 (Moustafa Cheikho): Moustafa Cheikho's attendance at the LeT camp in Pakistan
[325]
The evidence
[325]
Issue (i): The identification evidence
[337]
The argument on appeal
[343]
Issue (ii): Was the evidence tendency evidence?
[344]
The argument on appeal
[353]
Issue (iii): If the evidence was tendency evidence, was it admissible, having regard to the tests required by s 97(1) and s 101?
[373]
Issue (iv): Section 137
[379]
Issue (v): The directions
[381]
Issue (vi): Separate trials
[390]
Grounds 5-6 (Hasan): "gruesome" imagery
[404]
The argument on appeal
[439]
Ground 6: Directions with respect to "gruesome" images
[450]
Ground 5 (Khaled Cheikho): "extremist material"
[465]
Ground 7 (Hasan): Duplicity
[476]
Ground 4 (Khaled Cheikho): Refusal to dismiss the conspiracy charge under s 11.5(6) of the Code
Ground 8 (Hasan): Joint trial - miscarriage of justice
[477]
Ground 4 (Khaled Cheikho): "His Honour erred in refusing to dismiss the charge of conspiracy in accordance with s 11.5(6) of the Criminal Code (Cth)"
[479]
Ground 8 (Hasan)
[506]
Grounds 2 and 3 (Khaled Cheikho): Crown Prosecutor's final address
[518]
(i) Whether Khaled Cheikho was complicit in the acquisition of ammunition by an alleged co-conspirator
[520]
(ii) Khaled Cheikho's role in the conspiracy as a "leader"
[525]
(iii) Other inferences
[531]
Ground 6 (Khaled Cheikho): Direction
[550]
Ground 3 (Elomar): "Directions with respect to characteristics 3 and 4"
[551]
Ground 4 (Elomar): Unreasonable verdict?
[572]
Ground 1 (Khaled Cheikho): Unreasonable verdict
[574]
(a) Was Khaled Cheikho a participant in the conspiracy alleged?
[579]
(b) A single conspiracy?
[603]
THE APPEALS AGAINST SENTENCE
[611]
The Sentencing Proceedings
[611]
Findings of Whealy J
[617]
Ordering/Collection of ammunition
[617]
Purchase of laboratory equipment
[618]
Attendance at camping trips
[621]
Purchase of chemicals
[622]
Concealment and other activities occurring at the end of the period of the conspiracy
[627]
Instructional material
[631]
Extremist or Fundamentalist material
[633]
Objective seriousness of the offence
[635]
Conditions of incarceration
[639]
Sentencing framework
[640]
Mohamed Ali Elomar
[643]
Sentencing proceedings
[644]
Consideration
[651]
Khaled Cheikho
[656]
Sentencing proceedings
[657]
Ground 1: Acquisition of ammunition finding
[664]
Consideration
[666]
Ground 2: Text message communication finding
[670]
Consideration
[671]
Ground 3: Vehicle finding
[675]
Consideration
[676]
Ground 4: Co-ordinator of the conspiracy finding
[682]
Consideration
[683]
Ground 5: Time as member of conspiracy finding
[686]
Consideration
[687]
Ground 6: Finding that the offence was aggravated
[690]
Moustafa Cheikho - ground of appeal 1(1)
[695]
Consideration
[698]
Ground 7: Finding that custodial conditions diminished in light of nature of offence
[706]
Consideration
[709]
Ground 8
[713]
Ground 9: Manifestly excessive
[714]
Consideration
[715]
Oral submissions in appeal
[717]
Consideration
[718]
Abdul Rakib Hasan
[722]
Sentencing proceedings
[723]
Ground 9: Objective criminality finding
[734]
Ground 10: Poor prospects of rehabilitation finding
[736]
Consideration
[740]
Ground 11: Weight accorded to cultural isolation
[746]
Consideration
[749]
Ground 12: Manifestly excessive
[753]
Moustafa Cheikho
[755]
Sentencing proceedings
[757]
Ground 1(1)
[769]
Ground 1(2): Factual finding
[770]
Consideration
[773]
Ground 1(3): Weight accorded to nature of attack and lack of proof of intention to take human life
[779]
Consideration
[781]
Ground 2: Poor prospects of rehabilitation finding
[785]
Ground 3: Manifestly excessive
[786]
Consideration
[788]
Mohammed Omar Jamal
[792]
Sentencing proceedings
[793]
Ground 9: Poor prospects of rehabilitation finding
[808]
Consideration
[814]
Ground 10: Parity
[824]
Consideration
[827]
CONCLUSION
[834]
INTRODUCTION
THE COURT: In early November 2005 nine men were arrested in Sydney and charged with a variety of terrorism-related offences, laid under the Criminal Code (Cth) ("the Code"). In May 2007 all nine were arraigned in the Supreme Court on an indictment that alleged, against each, conspiracy to do acts in preparation for a terrorist act or acts. The trial was fixed to commence in late February 2008. Before a jury could be empanelled, eight months of pre-trial procedures took place, before Whealy J (as he then was). His Honour delivered many interlocutory judgments on procedural and evidentiary issues.
On 12 September 2008 Mazen Touma, one of the nine, pleaded guilty to four counts on a new indictment presented against him. The charges were:
- acquisition of substantial quantities of firearm ammunition in preparation for a terrorist act or acts (this appears to have been charged under s 101.6 of the Code);
- attempt to make one or more improvised explosive device(s) in preparation for a terrorist act or acts (this also appears to be a charge under s 101.6 of the Code);
- two counts of possession of certain items connected with preparation for a terrorist act or acts, knowing of that connection (s 101.4 of the Code).
The dates of the offences coincided with the dates of the conspiracy alleged against all nine.
The Commonwealth Director of Public Prosecutions ("the Director") accepted the pleas in substitution for the conspiracy count on the original indictment. On 24 October 2008 Touma was sentenced to imprisonment for 14 years with a non-parole period of 10 years and 6 months: Regina (C'Wealth) v Touma [2008] NSWSC 1475.
On 24 October 2008 Mirsad Mulahalilovic, another of the nine, pleaded guilty to a single charge of possession of a small quantity of firearm ammunition which was connected with the preparation for a terrorist act or acts, being reckless as to the connection (s 101.4(2) of the Code). The Director accepted this plea in substitution for the original indictment. On 30 January 2009 Mulahalilovic was sentenced to imprisonment for 4 years and 8 months with a non-parole period of 3 years and 6 months: Regina (C'Wealth) v Mulahalilovic [2009] NSWSC 1010.
On 3 November 2008, Omar Baladjam, also one of the nine charged, pleaded guilty to four counts on an indictment. The counts were similar to those to which Touma pleaded guilty. On 7 April 2009 he was sentenced to imprisonment for 18 years and 8 months, with a non-parole period of 14 years: Regina (C'Wealth) v Baladjam (NSWSC, Whealy J, 7 April 2009, unreported).
A fourth of the nine men, Khaled Sharrouf, was initially found unfit to be tried. An order was made for his separate trial. Subsequently, he was found fit to be tried, and, on 3 August 2009, entered a plea of guilty to a count of possession of items connected with the preparation for a terrorism act, knowing of that connection. On 24 September 2009 he was sentenced to imprisonment for 5 years and 3 months, with a non-parole period of 3 years, 11 months and 7 days: Regina (C'Wealth) v Sharrouf [2009] NSWSC 1002. The Director accepted the plea as concluding the charges against Sharrouf.
On 3 November 2008 a jury was empanelled for the trial of the five remaining accused men, the present appellants: Mohamed Ali Elomar, Abdul Rakib Hasan, Khaled Cheikho, Moustafa Cheikho and Mohammed Omar Jamal. Since Whealy J was satisfied of the matters required by s 19(2) of the Jury Act 1977 (NSW), a jury of 15 was empanelled. With the exception of Khaled Cheikho and Moustafa Cheikho, when referring to any appellant individually, we will use his surname only.
The trial proceeded over the following 11 months. On 16 October 2009 the jury returned verdicts of guilty of the charge of conspiracy against each appellant. On 15 February 2010 Whealy J sentenced the appellants as follows:
Elomar: imprisonment for 28 years with a non-parole period of 21 years;
Hasan: imprisonment for 26 years with a non-parole period of 19 years and 6 months;
Khaled Cheikho: imprisonment for 27 years with a non-parole period of 20 years and 3 months;
Moustafa Cheikho: imprisonment for 26 years with a non-parole period of 19 years and 6 months;
Jamal: imprisonment for 23 years with a non-parole period of 17 years and 3 months: see R v Elomar; R v Hasan; R v Cheikho; R v Cheikho; R v Jamal [2010] NSWSC 10; 264 ALR 759 ("RoS").
Except for the sentence imposed on Jamal, each sentence was specified to commence on 8 November 2005, the day the appellants were arrested. The sentence imposed on Jamal was specified to commence on 21 December 2005.
Each appellant now appeals against conviction and seeks leave to appeal against sentence.
The charge of conspiracy to do an act or acts in preparation for a terrorist act or acts stems from a combination of s 101.6 and s 11.5 of the Code. Section 101.6 appears in Pt 5.3 of the Code, which carries the heading "Terrorism" and contains a detailed regime of provisions concerning offences of that nature. Section 101.6 provides as follows:
"101.6 Other acts done in preparation for, or planning, terrorist acts
(1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.
Penalty: Imprisonment for life.
(2) A person commits an offence under subsection (1) even if:
(a) a terrorist act does not occur; or
(b) the person's act is not done in preparation for, or planning, a specific terrorist act; or
(c) the person's act is done in preparation for, or planning, more than one terrorist act.
(3) Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against subsection (1)."
11 A "terrorist act" is defined in s 100.1 in the following way:
"terrorist act means an action or threat of action where:
(a) the action falls within subsection (2) and does not fall within subsection (3); and
(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public."
Sub-sections (2), (3) and (4) provide:
"(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person's death; or
(d) endangers a person's life, other than the life of the person taking the action; or
(e) creates a serious risk to the health or safety of the public or a section of the public; or
(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of essential government services; or
(v) a system used for, or by, an essential public utility; or
(vi) a system used for, or by, a transport system."
(3) Action falls within this subsection if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person's death; or
(iii) to endanger the life of a person, other than the person taking the action; or
(iv) to create a serious risk to the health or safety of the public or a section of the public.
(4) In this Division:
(a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and
(b) a reference to the public includes a reference to the public of a country other than Australia."
12 Section 11.5 provides as follows:
"11.5 Conspiracy
(1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.
Note: Penalty units are defined in section 4AA of the Crimes Act 1914 .
(2) For the person to be guilty:
(a) the person must have entered into an agreement with one or more other persons; and
(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
(2A) Subsection (2) has effect subject to subsection (7A).
(3) A person may be found guilty of conspiracy to commit an offence even if:
(a) committing the offence is impossible; or
(b) the only other party to the agreement is a body corporate; or
(c) each other party to the agreement is at least one of the following:
(i) a person who is not criminally responsible;
(ii) a person for whose benefit or protection the offence exists; or
(d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy.
(4) A person cannot be found guilty of conspiracy to commit an offence if:
(a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or
(b) he or she is a person for whose benefit or protection the offence exists.
(5) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to prevent the commission of the offence.
(6) A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.
(7) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(7A) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(8) Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given."
The indictment
The indictment was in the following terms:
"The Director of Public Prosecutions of the Commonwealth of Australia, who prosecutes in this behalf for Her Majesty, charges on 3 November 2008 that
Mohamed ELOMAR, Abdul Rhakib HASAN, Khaled CHEIKHO, Moustafa CHEIKHO, and Mohammed Omar JAMAL
Between about 8 July 2004 and 8 November 2005 at Sydney in the State of New South Wales and elsewhere did conspire with each other and with Omar Baladjam, Mazen Touma, Khaled Sharrouf, Mirsad Mulahalilovic, and divers others to do acts in preparation for a terrorist act (or acts).
Particulars of the terrorist act (or acts)
The terrorist act (or acts) was (or were) to involve an action or threat of action involving the detonation of one or more explosive devices or the use of firearms or both that was (or were) to be done or threatened:
a) With the intention of advancing a political, religious or ideological cause; and
b) With the intention of:
i. Coercing, or influencing by intimidation the Government of the Commonwealth or a State, Territory or foreign country or a part of a State, Territory or foreign country; or
ii. intimidating the public or a section of the public; and
c) In circumstances where the action, if carried out, would:
i. Cause serious harm that is physical harm to a person; and/or
ii. Cause serious damage to property; and/or
iii. Cause a person's death; and/or
iv. Endanger a person's life, other than the life of the person taking the action; and/or
vi. Create a serious risk to the health or safety of the public or a section of the public; and
d) In circumstances where the action to be done or threatened would not be advocacy, protest, dissent or industrial action, or alternatively would not be advocacy, protest, dissent or industrial action of a kind not intended to:
i. Cause serious harm that is physical harm to a person; or
ii. Cause a person's death; or
iii. Endanger a person's life, other than the life of the person taking the action; or
iv. Create a serious risk to the health or safety of the public or a section of the public."
It will be observed that the indictment specifically named Baladjam, Touma, Sharrouf and Mulahalilovic as members of the conspiracy, as well as "divers others".
Each appellant has filed an individual Notice of Appeal against conviction, and an application for leave to appeal against sentence. A good proportion of the grounds they have pleaded are common to all, or some, of the appellants. In many cases, the appellants have adopted grounds framed by others. There remain, however, some grounds relied upon by only one, or a small number, of appellants.
An overview of the Crown case
Although it will be necessary, in due course, to refer to parts of the evidence in more detail, the Crown case may, in the first instance, be stated with relative brevity. What follows is drawn largely from the sentencing remarks of Whealy J on 15 February 2010: see RoS. The Crown case was as follows.
Each of the appellants is, or perceives himself to be, a devout adherent of the Muslim faith. Each could properly be called a fundamentalist or extremist. Over a period that commenced no later than 4 May 2005, each appellant agreed with each other appellant, and with others, to take steps towards an act (or acts) of terrorism. The conspiracy came to an end on 8 November 2005 with the arrest of all appellants. On that day Jamal was arrested but released, and re-arrested on 21 December 2005.
The object of the conspiracy was to equip the appellants with the knowledge for, or to enable, a terrorist act or acts to be carried out in Australia. The purpose was to instil terror and panic in the Australian community, and to force the Australian government to change its alliances and foreign policies. The terrorist act(s) contemplated involved the detonation of one or more explosive devices, or the use of firearms, or both.
Included in the Crown case was evidence that before the commencement date specified in the indictment, Moustafa Cheikho attended a militarist Islamic training camp in Pakistan. Objection was taken on behalf of all appellants to the admission of the evidence. The Crown sought to lead the evidence against all accused. On 15 April 2008, Whealy J ruled that the evidence would be admitted against Moustafa Cheikho: Regina (C'Wealth) v Baladjam [No 7] [2008] NSWSC 756.
As a consequence of that ruling, applications were made on behalf of Hasan and Elomar for separate trials. On 30 September 2008, Whealy J rejected the applications: Regina (C'Wealth) v Baladjam [No 49] [2008] NSWSC 1468.
During the course of the conspiracy, the appellants communicated extensively with one another and with others, often by telephone, and sometimes using coded language. Each of the appellants undertook various tasks. It is not necessary, for present purposes, to identify the precise activities of each appellant. It is sufficient to say that they amassed an armoury of firearms (some of them authorised by appropriate licences), together with large volumes of ammunition. They purchased laboratory equipment. They collected (usually, but not always, electronically) a considerable library of literature containing instructions on the manufacture of explosives, and the detonation of various improvised explosive devices. Much of this literature was in the Arabic language. They obtained a large number of mobile telephones, almost always (if not always) in false names. They purchased chemicals and other materials suitable for use in the manufacture and detonation of explosives. They were in possession (again, usually electronically) of a very large quantity of extremist literature, advocating the pursuit of "Jihad" (or "holy war") and expressing propagandist fundamentalist Islamic beliefs.
The appellants were under suspicion, and were the subject of surveillance, for some months prior to their arrest. Many of their conversations were recorded pursuant to warrants issued under the Surveillances Devices Act 2007 (NSW), or the Telecommunications (Interception and Access) Act 1979 (Cth).
On two occasions, in March and April 2005, some of the appellants travelled to remote bushland areas of NSW, where they camped for two to three days. (The Crown was not able to establish that these trips were for the purpose of "training" in terrorist activities; rather, the Crown contented itself with describing the camps as "bonding sessions".)
At least by the closing stages of the conspiracy, the appellants were aware that they were under suspicion. Indeed, from June 2005, search warrants were executed on the premises of many, if not all, of the suspects, and on various motor vehicles.
Even before then, the appellants engaged in evasive and concealment activities. The acquisition of mobile telephones in false names was one instance of such behaviour. Another was making travel arrangements under false names.
It was not the Crown case that the conspirators had identified a specific target, nor even a specific method of achieving their objective. No precise terrorist act had been selected; nor had any precise perpetrator or perpetrators been nominated. The conspiracy, when brought to an end with the arrest of the participants, was still in the planning stages. That, no doubt, explains why the conspiracy alleged was formulated by reference to s 101.6 of the Code (that is, preparation for terrorist activity).
It was the Crown case that the appellants were associated with another group of Islamic fundamentalists operating in Victoria. This group was also under suspicion, and subject to surveillance. That surveillance also included interception of telephone communications, and the use of listening devices. It was not the Crown case that this group was part of the conspiracy alleged against the appellants. The Crown relied on the evidence of the association in order to establish the state of mind, and the thinking, of the appellants in conducting themselves as they did. This evidence came to be known as "the Melbourne evidence"; it is the subject of some considerable controversy, and will be referred to in more detail below.
The leader of the Melbourne group, on the Crown case, was a well known Islamic cleric named Abu Nacer Benbrika ("Benbrika"). Another prominent member of the group was Aimen Joud ("Joud"). The evidence in the Crown case included the recording of a conversation on 23 February 2005, to which Benbrika and Sharrouf were parties. Benbrika is recorded as advocating that, in the cause of Jihad, it was necessary that Muslim adherents "do maximum damage" to the lives and the property of non-believers or the enemies of Islam. This came to be known as "the maximum damage conversation" and plays a significant role in the appeal.
Although four (Touma, Mulahalilovic, Baladjam and Sharrouf) of the nine men initially arrested and charged were dealt with separately (see [2]-[5] above), it remained the Crown case that they were part of the conspiracy alleged against the appellants. That had some evidentiary implications. Evidence of their overt acts was admissible against the appellants.
Some relevant procedural chronology
On a date or dates that we are unable to ascertain, the Director provided to the then accused a document entitled "Crown Case Statement", and another entitled "Summary of Overt Acts". The former was said to contain an overview of the evidence upon which the Crown then intended to rely at trial. It did not purport to be "an exhaustive summary" and was said to be subject to change and possible amplification. The latter was expressed to be intended to be read in conjunction with the Crown Case Statement.
31 The principal issues at trial were:
During the relevant period,
(1) Did a conspiracy of the kind alleged by the Crown exist?
(2) If it did, was each offender a participant in that conspiracy?
The defence raised by each appellant was that, even if such a conspiracy were in existence, which was denied, he was not a party to it. Others may have been, but he was not.
Pre-trial proceedings with respect to the charges against the present appellants began in February 2008. Over the following eight months, Whealy J disposed of numerous interlocutory applications and resolved numerous evidentiary issues. At this time, not only the present appellants, but also Touma, Mulahalilovic, Baladjam and Sharrouf were subject to the indictment. It was only after the completion of the pre-trial procedures that they took the various courses they did.
On 5 February 2008 a trial commenced in the Supreme Court of Victoria in Melbourne before Bongiorno J. Twelve men were charged with offences against Pt 5.3 of the Code. One of the men was Benbrika. Another was Joud. The Crown opening in the trial attracted a considerable degree of media attention.
In February 2008 applications were made on behalf of all of the present appellants. The first application was made to Bongiorno J, by intervention in the Melbourne proceedings on 20 February. The appellants sought orders restraining publication of certain evidence anticipated in the Melbourne trial, particularly the names of any of the present appellants who might be mentioned in the Melbourne trial; the concern was with any such evidence that might link any of the appellants with Benbrika. After hearing argument, Bongiorno J refused the application, but suppressed publication of details of the application until further order: R v Benbrika (Ruling No 19) [2008] VSC 48.
The second application was made to Whealy J on 25 February 2008. Again, the appellants sought orders restricting publication of any evidence in the Melbourne trial that might identify the appellants. They sought a specific order prohibiting publication of any reference to Benbrika other than by the pseudonym "C" or "Mr C". On behalf of Jamal only, a temporary stay of the trial was sought.
The application was supported by an affidavit affirmed by the solicitor representing Mulahalilovic and Khaled Cheikho, but, for the purpose of the application, representing all the then accused. Annexed to the affidavit was a large quantity of media material, taken from the internet, and from print and electronic media outlets. The print materials included newspapers circulating in Sydney.
The media material presented reported the proceedings in the Melbourne trial, with extensive reference to the lengthy opening in the trial given by the Crown prosecutor. It included:
"The leader of a Melbourne-based terrorist group told his members they should kill 1000 non-believers to try to force the withdrawal of Australian troops from Iraq, a court has heard. Among targets discussed to inflict maximum casualties were railway stations or football grounds, the Victorian Supreme Court was told today."
Later in the report, the Melbourne accused were named. Benbrika was identified as the "leader and director" of the terrorist group.
In another report, it was said that the Crown alleged that the organisation, led by Benbrika, was "stockpiling a vast library of extremism material". Other reports were to similar effect. One began:
"Just weeks out from the 2004 Federal election a Melbourne man urged his Muslim spiritual leader to facilitate a terrorist attack on an Australian target before the poll, a court heard today."
Some of the material contained photographs of Benbrika. He is somewhat distinctive in appearance.
Whealy J took a similar course to that taken by Bongiorno J. He declined to make the orders sought, but prohibited publication of details of the application. He declined to stay the trial: R (Cth) v Baladjam; R (Cth) v Cheikho; R (Cth) v Cheikho; R (Cth) v Elomar; R (Cth) v Hasan ; R (Cth) v Jamal; R (Cth) v Mulahalilovic ; R (Cth) v Sharrouf; R (Cth) v Touma [2008] NSWSC 714; 270 ALR 92.
In March 2008, relying on s 11.5(6) of the Code, all accused sought orders dismissing the charge of conspiracy. On 18 March, Whealy J rejected the applications: R (Cth) v Baladjam; R (Cth) v Cheikho; R (Cth) v Cheikho; R (Cth) v Elomar; R (Cth) v Hasan ; R (Cth) v Jamal; R (Cth) v Mulahalilovic ; R (Cth) v Sharrouf; R (Cth) v Touma (No 4) [2008] NSWSC 726; 270 ALR 106. Several of the accused sought leave, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), to appeal against that decision. Leave to appeal was refused: R v B [2008] NSWCCA 85; 76 NSWLR 533.
In May 2008, as part of the pre-trial procedures, counsel for all appellants sought the exclusion of the Melbourne evidence, challenging its relevance and relying on s 137 of the Evidence Act 1995 (NSW), pursuant to which, in a criminal trial, evidence sought to be adduced by the Crown must be excluded if its probative value is outweighed by its prejudicial effect. Reliance was placed upon further reporting of the evidence in the Melbourne trial, including reports of evidence that three of the Melbourne accused had travelled to Sydney to take part in a "training camp"; reports of evidence that the 2005 AFL Grand Final was nominated as the original bombing target of the Melbourne group; and reports of evidence of "the maximum damage conversation".
In a lengthy judgment, dated 28 May 2008, Whealy J determined that the evidence would be admitted: Regina (C'Wealth) v Baladjam [No 19] [2008] NSWSC 1441. He made particular reference to evidence of an interview with Benbrika broadcast on the ABC television current affairs programme, "the 7.30 Report". A suggestion that the transcript of the interview be read, rather than showing Benbrika's face, was opposed by the Crown on the grounds that assessment of his demeanour was important, and was not ultimately adopted. Ultimately, by agreement between the parties, throughout the trial Benbrika was referred to as "Sheikh Bakr" (a name he did, at times, use), and the other members of the Melbourne group by their first names only.
In August 2008, senior counsel for Elomar, supported by counsel for all other accused, renewed the application for exclusion of the Melbourne evidence, and some other evidence of conversations involving one or more of the accused. These conversations were, generally, conversations that could be interpreted as signifying extremist attitudes and views held by the accused. Also subject of the application was evidence of the contents of computers and other material found in the possession of the accused.
For the purpose of determining that application, Whealy J was provided with three folders of evidentiary material. This consisted of transcripts of recorded conversations in which the various accused had participated, and also of the computer material.
On 26 August 2008, Whealy J again determined that the evidence would be admitted: R (Cth) v Baladjam; R (Cth) v Cheikho; R (Cth) v Cheikho; R (Cth) v Elomar; R (Cth) v Hasan ; R (Cth) v Jamal; R (Cth) v Mulahalilovic ; R (Cth) v Sharrouf; R (Cth) v Touma(No 38) [2008] NSWSC 1458; 270 ALR 187.
In due course, it will be necessary to deal in more detail with what is encompassed in "the Melbourne evidence".
On 15 and 16 September 2008, verdicts were delivered in the Melbourne trial. Seven of the 12 accused, including Benbrika, were convicted of the offence of knowingly being members of a terrorist organisation (s 102.3 of the Code). Some of the accused were also convicted of other (Pt 5.3 of the Code) offences. The convictions attracted further media attention. At this time, a jury for the trial of the appellants had not been empanelled.
In October 2008, objection was taken on behalf of all accused to the admission of some of the so-called "extremist material" found to be in their possession. On 2 October Whealy J ruled that the majority of the material would be admitted, with some exclusions and modifications: Regina (C'Wealth) v Baladjam & Ors [No 50] (NSWSC, Whealy J, 2 October 2008, unreported).
On 9 October 2008 the appellants sought various non-publication orders. The orders sought were directed, not to the Crown, but to the media generally. Various media outlets were represented at the hearing. Specifically, the appellants sought an order prohibiting publication of evidence tending to connect the Melbourne proceedings with the trial of the appellants; an order prohibiting further publication of the 7.30 Report interview; an order prohibiting publication of any photograph or image of Benbrika; and an order prohibiting publication of the application or its hearing.
Ultimately, Whealy J made orders in the following terms:
"i. that there be no publication of any information tending to connect criminal proceedings in Victoria against Benbrika [and the other Melbourne accused], information or evidence revealed therein, and (a) the proceedings in this Court [against the original nine accused], and (b) [against the present appellants].
ii. no further publication for the duration of the trial in this Court ... of the interview between Abdul Nacer Benbrika and the ABC on 4 August 2005 or any part thereof.
iii. for the duration of any such trial in this Court as aforesaid, no further publication of any photograph or image, drawing or representation of Abdul Nacer Benbrika taken from the said interview or derived in any way from it.
iv. no publication of this application, this hearing or of the orders made pursuant to this hearing.": Regina (C'Wealth) v Baladjam & Ors [No 59] (NSWSC, Whealy J, 10 November 2008, unreported)
Between 27 October and 3 November 2008 a jury was empanelled in the Supreme Court for the trial of the appellants. Each appellant entered a plea of not guilty. The Crown opened the case to the jury over a period of 5 days. Counsel for all appellants made opening statements to the jury. They made clear that the vast majority of the prosecution evidence was not in dispute. What was in dispute was what inferences could properly be drawn from the evidence - that is, whether it could properly be held to establish participation in a conspiracy of the kind alleged.
On 26 November 2008 - that is, about four weeks into the trial - the jury sent a note to the judge. The note expressed concerns about two incidents that had taken place during the previous week. The first incident involved four jurors, who said that they had been followed to the car park they used. The second involved one juror, who believed that she had been observed in her car by a woman, who made notes in a notepad, and made a telephone call. The inference was clear, that the jurors suspected that the woman was making a note of their car registration or other details. The note identified a woman who wore a headscarf and who they had seen in the public gallery of the court.
Whealy J brought this note to the attention of all counsel, in private chambers. The discussion in chambers was taken down by a court reporter, transcribed, and became part of the trial transcript. As was apparent from the note, the woman had been a regular attender at the trial, in the public gallery. During the discussion in chambers it emerged that she was a niece of Elomar, and had been consulted from time to time during the trial by Elomar's solicitor. The jury may have been able to observe this interaction, and deduce that she was associated with at least one of the then accused.
Whealy J referred the note to the attention of police for enquiries to be made. Senior counsel appearing for Moustafa Cheikho indicated that his instructions were to apply for a discharge of the jury.
On the return of the jury to the court, Whealy J directed them at some length concerning the incidents. He told the jury that there was "not the slightest suggestion that this incident had anything to do with the accused" and reminded them, forcefully, that they were to judge the trial impartially and on the evidence heard in the court. Later on the same day all appellants joined Moustafa Cheikho in seeking discharge of the jury. Whealy J heard argument from counsel. Still later in the day, the Crown prosecutor indicated that he had received instructions from the Director not to oppose the application for discharge.
Notwithstanding the position taken by the Director, Whealy J declined to discharge the jury: Regina (C'Wealth) v Elomar [No 4] [2008] NSWSC 1444. Thereafter, he made arrangements for the jury to be conveyed to and from the court by bus. This episode is the subject of one of the grounds of appeal and will be considered in more detail below.
On 3 February 2009 Bongiorno J sentenced those convicted in the Melbourne trial. The sentences attracted a degree of media attention.
On 11 February 2009 all appellants applied for discharge of the jury. These applications were based upon what was called "large scale publicity" following the sentencing of the Melbourne accused. On 6 March 2009, Whealy J refused the application: Regina (C'Wealth) v Elomar [No 12] [2009] NSWSC 448.
The trial proceeded. Of the appellants, only Hasan gave oral evidence. On 11 September 2009, during the course of the summing up, application was made on behalf of four of the accused for discharge of the jury. The basis for the application was that it had been widely reported in the media that a terrorist bombing had taken place in Mumbai, India, and there were reports of terrorist activity in Britain. On 21 September, Whealy J refused the application: Regina (C'Wealth) v Elomar [No 27] [2009] NSWSC 985. Verdicts of guilty were returned on 16 October 2009. The appellants were sentenced on 15 February 2010: see RoS.
The evidence in the Crown case
As indicated by the opening statements of all counsel, a considerable proportion of the evidence relied upon as establishing the conspiracy was not in dispute. What was in dispute was the motivation of the appellants in undertaking their activities. The Crown sought to prove that, in the case of each appellant, by a very large quantity of circumstantial evidence.
The appellants were under surveillance over a considerable period of time. Listening devices, authorised pursuant to relevant legislation, and telephone intercepts, similarly authorised, produced a large volume of evidence. As mentioned above, search warrants were executed in June, July and August 2005 on the homes of various of the alleged participants. Further search warrants were executed at the homes of all appellants on the day of their arrest, 8 November 2005.
The Crown set out to prove that the motivation of each appellant was to engage in an act or acts of terrorism by proving that each held extremist, fundamentalist, Islamic beliefs, and was committed to "Jihad". "Jihad" is defined in the Macquarie Dictionary as (in Islam) a "spiritual struggle, efforts made in the cause of God; at the personal level, a struggle to be righteous and follow in God's path; at the community level, a struggle or holy war in support of Islam against unbelievers".
Two principal ways in which the Crown sought to prove the state of mind of the appellants were through extremist literature found, on execution of search warrants, to be in their possession, some of it in hard copy, the majority in electronic form, and through statements out of their own mouths, in the recorded conversations. The execution of search warrants produced vast amounts of material that may properly be called "extremist". One controversial aspect of the evidence by which the Crown sought to demonstrate the motivation of the appellants was the discrete body of evidence known as "the Melbourne evidence". This will be outlined in more detail below.
It is now necessary to set out the Crown case in more detail. Before coming to that task, we make the following observation. The logistics of these appeals were, as were the logistics of the trial, formidable. The Court therefore required the Crown to provide a summary of material evidence advanced at trial, and the appellants to respond by identifying any areas of dispute, and any material relevant to the grounds of appeal said to have been omitted from the Crown summary. In what follows we have relied heavily upon the Crown document, in the light of the responses of the appellants.
The evidence presented on behalf of the Crown fell into a number of categories, as indicated below:
(i) physical conduct of the appellants, and of others alleged to be involved in the conspiracy;
(ii) possession by the appellants (and others) of extremist Islamic literature;
(iii) possession of training and instructional literature;
(iv) possession by the appellants (and others) of instructional material relevant to the manufacture and use of explosive devices;
(v) acquisition and possession of chemicals and other items suitable for use in the manufacture and detonation of explosive devices;
(vi) acquisition and possession of firearms and ammunition;
(vii) acquisition, possession and use of numerous mobile telephones registered in false names;
(viii) association by the appellants with each other (and with others);
(ix) use of concealment and counter-surveillance techniques;
(x) the Melbourne evidence.
By this categorisation, we do not intend to suggest that any item of evidence fits into only one category. The categories are not mutually exclusive. As is the case with most filing systems, much of the evidence could rationally be placed into more than one category. The categorisation has been adopted as a convenient method of setting out the Crown evidence.
In reviewing the evidence in the Crown case, it will be convenient to refer also, as briefly as possible, to any admissibility or procedural issues that arose concerning that evidence. This will be done with particular attention to those issues that arise in the appeals.
Category (i): Physical conduct of the appellants, and of others alleged to have been involved in the conspiracy
The physical activities relied upon by the Crown overlapped, but were not co-extensive with, the overt acts particularised as acts undertaken in furtherance of the conspiracy relied upon by the Crown in the Summary of Overt Acts. Some pre-dated the commencement date alleged in the indictment. Others were not said by the Crown to have been undertaken in furtherance of the conspiracy, but had other evidentiary value, as will become apparent. This evidence included the following:
- the attendance, in 2001, of Moustafa Cheikho at a "training camp" in Pakistan;
- the purchase by Hasan on two occasions in 2004, of more than 15 topographical maps, containing topographical data concerning Sydney and a large geographical area to the north, south and west of Sydney;
- inquiries, by Hasan, about four-wheel drive motoring books;
- the purchases, also by Hasan in 2004 and 2005, of a large quantity of camping equipment, including heavy duty backpacks, bed rolls and other items, which he told a shop assistant were for a training camp for Islamic youth with which he was involved;
- attendance by some of the appellants at two "bonding camps" in March and April 2005 (see Category (viii) below).
It is necessary to say more about the first of these, the attendance by Moustafa Cheikho at a training camp in Pakistan. The evidence showed that, in 2001, Moustafa Cheikho travelled to Pakistan for the purpose of attending a "training camp" conducted by an Islamic religious organisation called Lashkar-e-Taiba ("LeT"). LeT had a military operation, the origins of which lay in opposition to the Indian occupation of Kashmir.
The evidence concerning Moustafa Cheikho's attendance at the LeT camp was given by an American citizen (of Korean origin), Yong Ki Kwon, who gave evidence by audio visual link from the United States. Kwon had himself been charged in America with offences, and had initially been sentenced to imprisonment for 11 years and 6 months. A series of reductions granted by reason of his assistance to American and other authorities eventually brought his sentence down to one of 38 months.
Kwon had attended the LeT camp in late 2001. The camp was situated in a number of locations. Kwon described the training as involving three steps. The first, of about 12 days, involved familiarisation with weapons; the second, of 30 to 33 days, consisted of "commando training", including camouflage, reconnaissance, field manoeuvres, target shooting, external communication devices, ambush tactics, and "repelling and rope crossing". Kwon did not identify the third stage of training (although it appears that, in committal proceedings, he had said that the third stage was for people who were committed to "going into Kashmir").
On Kwon's description of the routine at the camp, it is apparent that there was some emphasis on training for physical fitness. There were regular prayers, and in the evenings religious discussions. There were mosques at each geographical location of the camp.
Some care was taken to ensure that participants did not know the full names of other participants. What were called "Abu" names, meaning "father of ...", were used. This was a traditional means of protecting the identities of individuals involved in "jihad-type activity".
From photographs, Kwon identified Moustafa Cheikho as an Australian, using the name "Abu Asad", who had participated in the training camp. Kwon did not claim that Moustafa Cheikho attended the camp in the same intake as he. His evidence was that Moustafa Cheikho arrived at the camp as he (Kwon) was completing stage 2. However, they were in the same vicinity for physical training, meals, and prayers, and had conversations with each other. They were two of a small number of English speakers in the camp. Kwon said that Moustafa Cheikho told him that he was from Australia, that he had a reference letter from a sheikh to gain entry to the camp, and that, on completion of training, he intended to return to Australia. Kwon said that he observed Moustafa Cheikho engaging in physical training, and, on one occasion, cleaning an AK-47.
In November 2003 Kwon was interviewed by an Australian security agent and by Federal Bureau of Investigation (USA) ("FBI") Special Agent Wade Ammerman. In the course of the interview with the Australian agent he was shown an array of 12 photographs, from which he identified a photograph of Moustafa Cheikho as the person he knew as "Abu Asad". He said that in one conversation with "Abu Asad", Kwon had asked if "Abu Asad" was going on to Kashmir after training, but that "Abu Asad" said that he was not; he intended to return to Australia. Kwon did not ask why "Abu Asad" was undertaking the training if that were his intention.
Kwon's evidence identifying Moustafa Cheikho as the "Abu Asad" with whom he had come into contact at the camp was, in cross-examination, challenged. He accepted that, although he had been interviewed by officers of the FBI prior to his interview by the Australian security organisation, he had not mentioned the presence of an Australian at the camp.
There was unchallenged evidence that Moustafa Cheikho had, on 27 September 2001, travelled to Malaysia. He said in his outgoing passenger card that the country in which he intended to spend the most time was Bangladesh. He returned to Australia on 22 January 2002, from Singapore. On his incoming passenger card he said that the country in which he had spent the most time while away was Pakistan.
In one of the many pre-trial hearings, objection was taken on behalf of all appellants to the admission of this evidence. The Crown prosecutor indicated that it intended to use the evidence in two ways: first, directly against Moustafa Cheikho as evidence supporting inferences that (i) he had entered into the agreement the subject of the alleged conspiracy (s 11.5(2)(a) of the Code); (ii) that he did so intentionally (s 11.5(2) of the Code); and (iii) that he intended that an offence or offences would be committed (s 11.5(2)(b) of the Code).
The second way in which the Crown sought to use the evidence was against the appellants, as evidence that Moustafa Cheikho's training in Pakistan constituted an "available resource" to the conspiracy the Crown alleged. It may be assumed that this depended upon evidence, also proposed to be led, showing association between Moustafa Cheikho and the other appellants.
In a pre-trial judgment delivered on 15 April 2008, Whealy J ruled that the evidence would be admitted only against Moustafa Cheikho: Baladjam [No 7].
Category (ii): Possession by the appellants (and others) of extremist Islamic literature
The evidence indicated that all appellants were in possession, either electronically or in hard copy, of literature of various kinds, some of which might be called "extremist" or "jihadist". Moreover there was a large degree of commonality in what they possessed; that is, material in the possession of one appellant was also in the possession of other appellants and other alleged conspirators. The Crown divided this material into sub-categories:
(a) "Jihad" documents and images;
(b) documents relating to martyrdom;
(c) documents and images about insurgencies in Afghanistan, Bosnia, Chechnya, Iraq and Kashmir;
(d) documents about Sharia law and Western legal and political systems;
(e) documents critical of the United States and Israel;
(f) documents and images about the terrorist attacks in America on 11 September 2001;
(g) training and instructional documents and images;
(h) manuals on explosives and other relevant topics.
In these reasons, it is possible only to give a relatively brief sample of the nature of the extremist Islamic material. It was voluminous. Where we extract quotations from the documents, we will reproduce the spelling used in the particular document, although there are variations in the spelling of some words.
Sub-category (a): "Jihad" documents and images
These documents had titles such as:
- "The World is Divided into Two Camps...";
- "Fundamental Concepts Regarding Al-Jihad";
- "Defence of the Muslim Lands";
- "Jihad - The Forgotten Obligation";
- "Notes on Jihad";
- "The Book of Jihad" (two separate documents bore this title).
The "two camps" mentioned in the first of these were identified as "The Camp of Imaam (Belief) and The Camp of Kufr (Disbelief)" - that is, belief or disbelief in Islam. This passage was attributed to Sheikh Osama bin Laden. The document goes on to assert:
"Those who are in the camp of Imaam and carry the Haqq (absolute truth) must come out with it and confront the Baatil (falsehood). Only then will the Haqq become Haqq and prevail even if the Kuffar hate it."
The "Fundamental Concepts Regarding Al-Jihad" was a lengthy publication, that included sections endorsing the permissibility of assassinating disbelievers, and that "martyrdom is not sought for its own sake, rather it is to make the religion dominant".
The "Defence of the Muslim Lands" documents distinguished between "offensive Jihad", which it defined as " where the enemy is attacked in their own territory" and "defensive Jihad", defined as "expelling the Kuffar from our land", which was said to be "a compulsory duty upon all".
In one "Book of Jihad" it was asserted "whosoever dies without participating in an expedition (Jihad) nor having the intention to do so; dies on a branch of hypocrisy".
Sub-category (b): Documents relating to martyrdom
The documents relating to martyrdom included:
- "Verdict Regarding the Permissibility of Martyrdom Operations";
- "Female Suicide Bombers for God";
- "Martyrs";
- "The Building Blocks of Nations";
- "The Virtues of Martyrdom";
- "The Islamic Ruling on the Permissibility of Self-Sacrificial Operations - Suicide, or Martyrdom?".
The first of these contains the following:
"The pestering Jews are the gatherers of all the shameful defects and the collectors of the aggravations and the evils and they are the harshest of Allah against Al-Islam and its people. He, the Most High said: Verily, you will find the strongest among men in enmity to the believers (Muslims) the Jews and those who are Al-Mushrikan ... And Allah has made compulsory the fighting against them and making Jihad against them so that the Word of Allah is the highest and the word of those who disbelieve is the lowest ... He, the Most High said: Fight against those who believe not in Allah, nor in the Last Day, nor forbid that which has been forbidden by Allah and His Messenger and those who acknowledge not the religion of truth (ie Islam) among the people of the Scripture (Jews and Christians), until they pay the Jizyah with willing submission, and feel themselves subdued ..."
The "Female Suicide Bombers for God" appears to be an article published in an Israeli political journal and examines a particular attack by a female suicide bomber, mentions another earlier attack by women and questions whether this constituted a "turning point" in the policy of fundamentalist terrorist organisations.
The document entitled "Martyrs: The Building Blocks of Nations" contained the following paragraph:
"The life of the Muslim Ummah is solely dependent on the ink of its scholars and the blood of its martyrs. What is more beautiful than the writing of the Ummah's history with both the ink of a scholar and his blood, such that the map of Islamic history becomes coloured with two lines: one of them black, and that is what the scholar wrote with the ink of his pen; and the other one red, and that is what the martyr wrote with his blood. And something more beautiful than this is when the blood is one and the pen is one, so that the hand of the scholar which expends the ink and moves the pen, is the same as the hand which expends its blood and moves the Ummah. The extent to which the number of martyred scholars increases is the extent to which nations are delivered from their slumber, rescued from their decline and awoken from their sleep."
The document entitled "The Virtues of Martyrdom" contained a summary, as follows:
"1) Noble objectives require enormous sacrifices.
2) Sacrificing one's soul is the ultimate sacrifice.
3) The status of the martyr and the virtues of martyrdom.
4) Examples of martyrs from among the companions of the Prophet sallallaahu alaihi wa sallam.
5) Examples of contemporary martyrs.
6) A call to support the Muslims in Palestine and a stern warning against forsaking them.
7) The deceitful Western Media and its twisting of facts."
Sub-category (c): Documents and images about insurgencies in Afghanistan, Bosnia, Chechnya, Iraq and Kashmir
This sub-category included documents with the following titles:
- "Our Goal is to Restore Peace and Establish a Pure and Clean Islamic State in Afghanistan";
- "Interview: With Commander Abu Abdel Aziz 'Barbaros' (Bosnia);
- Interview with Ameer: Arabi Barayev";
- "At-Tibyaan Publications - Sheikh Al-Zarqawi To Sheikh Bin Laden";
- "The Amir of the Mujahideen Party: The People of Kashmir Are Determined to Continue The Jihad Regardless of The Price";
- There were also many "Jihad Videos".
The interview with Commander Abu Abdul Aziz began with an introduction that contained the following:
"FOLLOWING its tradition of discussing (issues) with Ulema (scholars), students of (legal Islamic) knowledge and reformers, we present before the hands of the dear readers this interview. It is with one of the forerunners of Jihad in this era ... It is no doubt that Jihad has become in these days a grave accusation not only in the Arab and Western media, but also in the minds of many within the rank and file of the youth of Revivalist Islam. Their views and legal rulings are confused because of unclear experiments, and sometimes phony symbols.
Jihad remains (an authentic expression of Islam) for the people of (Islamic religious and legal) knowledge and the people of Jihad (And al-Jihad); those who know the (legal) conditions of Jihad in the Qur'an, Sunnals and the understanding of the pious generations (as-Salay as-Sadh) ..."
A document associated with the "Jihad Videos" included the following:
"The following are some selected Jihad songs [nasheed] that are Islamically valid ...
Come listen to what Islamic songs are like, these ones that can move you to tears ... These are not some lullaby songs which talk about Allah's creations, or pink and yellow butterflies. Rather, these nasheed talk about real things, like Jihad, which differentiates the Believers from the Hypocrites ...
The first line in this nasheed translates to: 'We used to own this world for centuries ...' [and then look what happened to us when we forgot Jihad]."
The At-Tibyaan Publications document (a statement by Sheikh Abu Mesa'ab Al Zarqawi to Osama bin Laden) contained the following:
"I want to assure you that we are keeping our covenant with Allah, our Jihad on the path of Allah will continue and we will sacrifice everything we have including our lives, in order for the religion of Allah to become the law of the land. We have made up our minds, we have chosen our option, we have raised the banner of Jihad, we have sharpened our swords, and we have decided to ride our spears to glory and honor."
Sub-category (d): Documents about Sharia law and Western legal and political systems
This sub-category included documents with the following titles:
- "Supporters of Shareeah - The Battle of Badr";
- "The Islamic Standard";
- "Ruling on fighting apostate governments";
- "At-Tibyaan Publications - The Ruling on the One Who Insults the Prophet of Allaah";
- "The Need for Allah's Laws";
- "Discussion on the understanding of the methodology to establish the Islamic state".
The document entitled "The Ruling on the One Who Insults the Prophet of Allah" identified as "the first issue" the following:
"That Whoever - be it Muslim or kafir - Swears at the Prophet, Then It Is Obligatory to Execute Him."
The text that follows quotes "one of the Great Imams" as saying:
"The Muslims have formed consensus upon that whoever swears at Allah, or swears at His Messenger or rejects anything from that which Allah Azza Wa Jall Revealed or kills a Prophet from the Prophets of Allah 'Azza Wa Jall, that he is a Kafir due to that, even if he accepts everything that Allah Revealed."
The document entitled (in Arabic) "The Need for Allah's Laws" referred to "universal need for justice and safety for all the inhabitants, human and non-human, on this planet" and to nuclear testing, the death of soldiers in unnecessary wars, and pollution from poisonous chemicals from industrial sites, and said:
"Surely, our Lord and Creator has not left us without a solution to these problems. Of all the problems that exist, our Maker and Creator is showing us the Need for Shari'a, which is a universal panacea that will meet the needs for all that are crying out for justice. Others stood up in the face of evil and grasped the banner of jihaad. This action indeed proved fruitful and brought success to these groups who propagated this idea ...
A portion of the brothers striving in jihaad, although well meaning, have forgotten about the jihaad that exists back home ... The priority for us now is to fight the other apostates and hypocrites first, then to deal with the unbelievers after that. But what has happened is that there is a concentration on the unbelievers, which leads to the exclusion of the apostate in our own house. Certainly, a burglar inside a house is more dangerous than outside, as Allah I cautions us,
'And fight those near to you from the Kuffar (unbelievers)' ...
...
This is why it is so important to get these societies inflamed with the fire of jihaad. Allah I commands us to uphold this great principle ...
'So fight in the cause of Allah. You are only responsible for yourself, and incite the believers so that Allah may protect you from the evil of those that are kuffar.'
...
The medicine needed for this clean up is what Allah I proclaimed in this ayah,
'And fight them until there is no more Fitnah (Shirk, oppression or absence of Shari'a) and the religion in totality is for Allah'."
In a document on the "Discussion on the understanding of the methodology to establish the Islamic state" it is asserted that:
"2) We have been ordered to establish the Islamic State. This is proven by various evidences ...
3) This obligation is known to befFard a keyfayah, and thus if neglected, those capable of carry out the work required to achieve the obligation, become sinful."
Sub-category (e): Documents critical of the United States and Israel
We mention only one of these documents in detail. In a document entitled "The Exposition Regarding the Disbelief of the One that Assists the Americans", the following appears:
"Statistically, it [the United States] is the most populace in whore houses, homosexuality, lesbianism, nude bars, pregnancies out of wedlock, children born out of wedlock, incest, crimes of character, television stations of moral deprivation, consumption of alcohol, clubs of frivolous activities, gambling, dancing, and various forms of corruption...
● It contains more than twenty million (20,000,000) sexual deviants [homosexual men and women].
● More than five thousand (5,000) children are bought and purchased there every year.
● Approximately one -third (1/3) of all children born there are conceived out of wedlock (children of fornication).
● Out of every twenty people (20) in America, there is one person kidnapped.
● More than fifteen million (15,000,000) babies have been killed there due to legalized abortion.
● The city San Francisco is considered the capitol (sic) of homosexuality and they (homosexuals) represent one-fourth of the voters in the city.
● There are more than one hundred million alcoholics there (100,000,000).
● The alcohol producing companies there produce of alcohol what reaches the value of twenty-four billion dollars ($24,000,000,000)."
Sub-category (f): Documents and images about the terrorist attacks in America on 11 September 2001
In one of the documents in this sub-category, the perpetrators of the attacks were described as:
"... those nineteen heroes - our brothers - who by the shedding of their blood wrote a new page in the history of Amerika: one of rejection by the Muslims of Amerikan arrogance and tyranny, one which expressed their pride in their own Way of Life, one of honour, and one which manifested their striving to avenge the Muslims and all who are oppressed."
In another, it was said:
"And for the first time in modern history, the Muslims were proactive makers of great events, not reactive and effected by events!
The greatness of this event is apparent in five ways:
The first: It returned Islaam back into confrontation and in war with the Kuffar, after nationalism, patriotism, and interests were the main driving force for wars and conflicts. So it brought out the christain crusading enmity from the hidden to the open, and from strength into action.
The second way: It made clear the great role of Jihaad in changing the global balances.
The third way: It ended the thought of using the nation states in politics and in declaring peace or war, because the leadership of this conflict is in the hand of those who have no nationalist affiliation ...
The fourth way: It ended the era of America striking whoever it wishes from the Muslims without being punished, for ever Allaah Willing.
The fifth way: It is the beginning of the fall of the 'New World Order' idea, which America will sadly miss in a short number of years. It is also the beginning of the complete collapse of America, Allaah Willing."
There was a great deal more in the same vein.
There was another sub-category of material to which we will refer as inflammatory material, intended to instil fear and hatred of modern civilisation, values and culture. Some showed dead or injured Muslim civilians and soldiers, "designed to evoke sympathy and distress from Muslim viewers": [46] RoS. Some contained "slogans" and other material relevant to terrorist attacks in the United States of America on 11 September 2001. This material was apparently designed to evoke admiration for those who had carried out the attacks. Some contained images of high profile identities (for example, Osama Bin Laden). This appears to have been designed to encourage viewers to commit to Islamic Jihad. Some of the material depicted military conflict, showing Americans and their allies being killed or wounded in combat. Some material depicted Muslim prisoners being badly mistreated or manhandled by their captors.
Some of this material showed the execution of hostages or prisoners by Mujahideen. ("Mujahideen" is a term used to denote "freedom fighters".) This material was described by Whealy J as "particularly brutal, distressing and graphic": [48] RoS). Of these, his Honour observed:
"It is impossible to imagine that any civilised person could watch these videos. So disturbing were they that none of the executions was shown to the jury. The preliminaries to the execution of a Korean prisoner in one video were shown but without audio content. That was the extent of it. Otherwise the jury were simply given a written description of the videos and their contents ..."
Some of this material "comprised miscellaneous extreme exhortations". There was more, but it is not necessary to go into further detail.
Sub-category (g): Training and instructional documents and images
780 He also noted that this offence was included in the definition of a "minimum non-parole period offence". By reference to those provisions, he submitted that 30 years represented the maximum head sentence to which he could have been sentenced for this offence. Taking into account his position in the hierarchy of the conspiracy, the absence of any prior convictions and his difficult conditions of custody, he submitted that the heavy head sentence imposed on him meant that sufficient weight was not given to the fact that no target had been selected and no decision had been made as to the precise terrorist act. He submitted that this could be inferred from the notional maximum sentence of imprisonment for 30 years when compared with the sentence of 26 years actually imposed on him.
Consideration
There are a number of answers to that submission. As was made clear in Lodhi v The Queen [2007], the fact of there being no identified target nor an identified act of terrorism, does not prevent an offence of this kind being properly regarded as most serious. There, Spigelman CJ said:
"79 The sentence imposed is a substantial one, particularly in view of the fact that there was no actual injury to persons or property. Nevertheless, as Price J emphasises, the provisions creating the offence are directed to preparatory acts and the seriousness with which Parliament regards such acts is manifest in the maximum penalty. By the extended range of conduct which is subject to criminal sanction, going well beyond conduct hitherto generally regarded as criminal, and by the maximum penalties provided, the Parliament has indicated that, in contemporary circumstances, the threat of terrorist activity, requires condign punishment.
...
83 The objective acts of the appellant, which did not go beyond collecting materials for future use, did not give rise to any imminent, let alone actual, threat of personal injury or damage to property. Such preparatory acts, even though criminalised, would not at first appear to justify so substantial a penalty. However, the position is different in the light of his Honour's clear and justifiable findings of fact that the appellant has not resiled from the extremist intention with which these acts were performed."
Price J made observations to similar effect:
"227 His Honour erred, Mr Boulten SC submits, by concluding that the objective seriousness was significant despite the [offending] acts being at a preliminary stage. Although it is true, Mr Boulten SC concedes, that the purpose of the legislation is to criminalise preparatory acts the level of culpability must necessarily depend, he submits, on the proximity between the appellant's act and any potential terrorist act.
228 The proximity of the offending act to the substantive offence is of relevance in the assessment of the culpability of an attempt to commit a crime. With the relevant state of mind the offender must do some act towards the commission of the offence which goes beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of the intended crime: R v Mai (1992) 25 NSWLR 371; 60 A Crim R 49. The unlikelihood of success of an attempt, although the ultimate crime is physically possible, is relevant to the consideration of the objective seriousness of the offence. The inter-relationship between the seriousness of the intended consequences and the real prospects of achieving them is a factor to be weighed in the light of all the circumstances: R v Taouk (1992) 65 A Crim R 387.
229 The present offences, however, are not crimes of attempt. Sections 101.4, 101.5 and 101.6 of the Criminal Code Act 1995 (the Criminal Code) extend criminal liability to acts of preparation. The proximity between the criminal act and the commission of the substantive offence is necessarily more remote. These are anticipatory offences which enable intervention by law enforcement agencies to prevent a terrorist act at a much earlier time than would be the case if they were required to wait for the commission of the planned offence or for an unsuccessful attempt to commit it. The proximity between the preparatory act and the completion of the offence, although relevant, does not determine the objective seriousness of such an offence. It does not follow that as long as the preparatory acts relied upon to constitute the offences are in their infancy criminal culpability must necessarily be low. The main focus of the assessment of objective seriousness must be the offender's conduct and the offender's intention at the time the crime was committed.
230 Having found that the appellant's acts were at a very early stage, Whealy J determined that an evaluation of criminal culpability required analysis not only of the act itself but an examination of the nature of the terrorist act contemplated particularly in the light of the appellant's intentions or state of mind. The three offences were to be viewed, his Honour said, in their entirety. The Judge pointed out that the very purpose of the legislation is to interrupt the preparatory stages leading to the engagement in a terrorist act so as to frustrate its ultimate commission. I see no error in his Honour's reasoning."
There is a further response to the submission. Section 19AG(3)(a) of the Crimes Act provides for no more than a notional maximum sentence of imprisonment with a corresponding non-parole period. It provides no upper limit: Cheikho v R (NSWCCA, 8 October 2008, unreported) at [10]. There was nothing to stop Whealy J imposing a head sentence of greater than 30 years, had he determined that such a sentence was appropriate.
This ground of appeal has not been made out.
Ground 2: Poor prospects of rehabilitation finding
In support of this ground, Moustafa Cheikho adopted the submissions of Hasan. That ground, as relied on by Hasan, was considered at [740] - [745] above. The same considerations apply here. In addition, there is the conclusion of Whealy J at [168] RoS which has not been challenged.
Ground 3: Manifestly excessive
Moustafa Cheikho submitted that, for reasons already referred to in support of Ground 1, the sentence imposed on him was manifestly excessive. He submitted that those errors in Whealy J's assessment of the objective seriousness of the offence must have adversely affected the length of the sentence imposed. Moustafa Cheikho accepted that the success of this ground depended largely upon the success of Ground 1 with its component parts.
Moustafa Cheikho acknowledged that in the sentencing proceedings, senior counsel appearing on his behalf submitted to the Court that a period of imprisonment with a non-parole period of 20 years was within the range of available sentences, although at the "absolute top of the range". He acknowledged that this did weaken the force of this ground of appeal.
Consideration
To the extent that there are any comparable cases, it should be noted that Whealy J found that the criminality in this matter was significantly higher than that in Lodhi v The Queen [2007], who was sentenced to imprisonment for 20 years with a non-parole period of 15 years. It could not be said that the sentence imposed on Moustafa Cheikho and on Hasan was out of step with the reasoning in Lodhi v The Queen [2007].
As Moustafa Cheikho properly conceded, the success of this ground is largely dependent upon the success of the issues raised in Ground 1. Since that ground was not made out, this ground of appeal should also fail. The concession made by senior counsel for Moustafa Cheikho in the sentencing proceedings was a proper one and is consistent with such a result.
This ground of appeal has not been made out.
Leave to appeal should be granted but the appeal dismissed.
Mohammed Omar Jamal
Jamal was sentenced to imprisonment for 23 years with a non-parole period of 17 years and 3 months. He seeks leave to appeal from that sentence on the following grounds:
Ground 9: His Honour erred in his finding that Mr Jamal's prospects of rehabilitation were poor (or as poor as his co-conspirators).
Ground 10: Mr Jamal has a legitimate sense of grievance when his sentence is compared to his co-conspirators.
Sentencing proceedings
Jamal did not give evidence in the sentencing proceedings. There was before the Court a report of a psychologist, Dr Christopher Lennings. Whealy J relied upon that report, which was based on an interview on 30 November 2009, for his findings as to Jamal's subjective case.
Jamal was born in 1984 in Australia. There were eight brothers and four sisters, with him being a middle child. Jamal reported that he received some significant abuse and neglect as a child from his father and an older brother. He expressed concern that the male members of his family were not allowed to visit him in prison. A number of his brothers had criminal records.
He did not get on well at school. He had difficulties with teachers and other children and was expelled in year 9. He completed the equivalent of a year 10 certificate at TAFE. He had an interest in computers and until the time of his arrest, was running his own business of building and fixing computers.
Initially Jamal mixed with a group of friends who abused drugs and alcohol. His eldest brother persuaded him to leave that group and introduced him to the Mosque. Gradually he became religious and devout and started to receive lessons about Islam. Through this he was introduced to his brother's friends who included some of the co-offenders. This relationship continued when his brother left the country.
He told Dr Lennings that he regarded himself as a "moderate Muslim". He said that in truth he liked his computers more than he liked religion. He said that his brother had downloaded onto his computer a number of radical Islamic tracks but that he had hardly looked at the material. He never looked at terrible scenes of beheadings etc, saying that he did not want to look at "that kind of stuff". He did read some articles, but maintained that this was only moderate Islamic material.
Jamal told Dr Lennings that he did order two types of chemicals, but was doing so in order to help a friend set up a battery re-conditioning business. He said that he was not "an extreme person, or someone who wanted to hurt others". He was struggling to accept the verdict of the jury. He said that it was hard to get a fair trial as a Muslim.
Dr Lennings concluded that Jamal was a young man experiencing a degree of depression as a result of his already long incarceration. He assessed him overall as having a low risk of future anti-social behaviour. He was unable to come to a conclusion about the risk of future terrorist activities because there was insufficient evidence to allow him to make a risk assessment. He could not find any support for concluding that Jamal was at a high risk of committing a further terrorist act. He made the point that Jamal's future in prison would be a difficult one.
Three witnesses were called on Jamal's behalf in the sentencing proceedings. The first was Soliman Gilany, who was the Imam of the Mosque at Bathurst. This involved him being the Muslim chaplain for the gaols at Bathurst and Lithgow. He first met Jamal in mid 2006 when he was at Lithgow gaol. He used to go to the gaol on a weekly basis. He saw Jamal over a period of about two months in the first instance, and then later about once a week for a further six months. The last time he saw Jamal was in late 2007.
Mr Gilany said that he had "tested" Jamal on occasions and had concluded that he held moderate views as a Muslim. He said that he could not detect any hatred towards Australia in him and that Jamal was more concerned to look after his mother. He said that Jamal did not express any extremist views to him. He thought that when Jamal was ultimately released into the community, he would not be any danger or risk to the safety of the public. When cross-examined by the Crown, Mr Gilany said that he accepted what Jamal had told him that he did not buy chemicals and did not have bad intentions.
The second witness was a friend of Jamal and a Christian. He said that Jamal was a "good guy" and that he had never said anything to him about a hatred of Australia. He said that they had never talked about religion and that he was very surprised when Jamal was arrested.
The third witness was Jamal's brother, Abdul. He was employed as a project manager. He confirmed that Jamal was very religious and that he prayed with him when he was with him. He said that his brother did not express any extremist views to him in 2005. He was shocked when he heard that his brother had been arrested in December of that year and could not believe that his brother "would do anything like that". He confirmed that the family was very close to Jamal and that they would support him when he was released.
Whealy J set out his conclusions in relation to that evidence as follows:
"162 There are two points I need to make in relation to the evidence tendered on the offender's behalf. First, I accept that there is sufficient confirmation of the history of the offender's background and upbringing to enable me to accept it as reliable. Secondly, I bear in mind that Jamal has not given evidence before me and the present state of his mind has not been explored or tested in any reliable way. The evidence which I have summarised purports to give indications, one way or another, whether Jamal had espoused jihadist sentiments and whether he poses a risk or not in terms of recidivism in relation to terrorism offences or, for that matter, criminal behaviour generally. It purports to examine his actions and motives in ordering chemicals. The Crown has made the point that the offender was not called to give evidence during the sentence hearing. This is a valid point. In my view, little weight can be given to statements of a self-serving kind in circumstances where the offender has not himself given evidence of his present state of mind. For that reason, the statements need to be treated with a considerable degree of caution (R v Qutami [2001] NSWCCA 353). Indeed, the brief and rather gentle cross-examination of Imam Gilany shows clearly how impressions may be gained by a witness, even an honest witness, when a degree of vigorous probing has been absent from his questioning of an offender."
Whealy J made these findings:
"163 I turn now to consider the level of criminal culpability of Omar Jamal. Once again, this is primarily determined by the fact that the jury's verdict requires a finding that he voluntarily entered into the criminal conspiracy to do acts in preparation for a terrorist act or acts. I am satisfied beyond reasonable doubt, as were the jury, that Jamal did so.
...
166 I am satisfied beyond reasonable doubt that on 28 September 2005 Jamal attended Auto King with Hasan and they ordered: -
(i) 10 x 20 litre drums of 45% strength sulphuric acid;
(ii) 5 x 10 litres of distilled water; and
(iii) 12 x 1.5 litres of distilled water.
167 A deposit was paid by Mr Hasan and, at the request of Mr Hasan, the false name phone 'George Markis' was activated to be used in connection with the chemical transactions. Between 28 September and 13 October 2005 on a number of occasions Jamal attended Auto King enquiring about the order. The distilled water was collected but, as it happened, the chemicals were not.
168 I am further satisfied beyond reasonable doubt that, at the behest of Hasan, Jamal attended Chemical Cleaning Solutions on 28 September 2005 and ordered:
(i) 200 litres of 98% methylated spirits;
(ii) 50 litres of hydrochloric acid;
(iii) 25 kilograms of citric acid, and
(iv) 20 litres of glycerine.
169 A deposit of $150 was paid over by Jamal. The money, it seems, had been given to Jamal by Hasan. It is not known where Hasan obtained the cash. Jamal gave a false name at the time of making the order. These chemicals were never collected, although the reason for that is not clear. I am satisfied beyond reasonable doubt that on 6 October 2005 Jamal attended Peter's Hardware at Greenacre. Once again, this was done at the behest of Hasan to enquire about an order for acetone which had been placed by Hasan on 28 September 2005. Once again Jamal gave a false name 'George' and supplied the 'George Markis' telephone contact number. Jamal did not collect the acetone but referred the matter to Hasan, who himself, collected it on 22 October 2005.
170 Finally, I am satisfied beyond reasonable doubt that Jamal and another (unidentified) male attended Auto King on 13 October 2005. This was to pick up the distilled water and the sulphuric acid. The distilled water was collected and the two men were then directed to the suppliers Autoquip to collect the acid. Jamal and the other man, accompanied by an employee of the retailer, then attended the supplier Autoquip to collect the 200 litres of sulphuric acid. The sulphuric acid, however, was not collected on that day, although the reasons for this are not clear. It seems that the sulphuric acid was never collected. Later that day, Jamal took the distilled water he had picked up to Hasan and gave it to him.
171 Consistently with the jury's verdict, I am satisfied beyond reasonable doubt that Jamal held each of the intentions necessary to demonstrate that the agreement into which he had entered related to doing acts in preparation for a terrorist act or acts. I am further satisfied that his motivation for joining the conspiracy was an effort to protest, through a terrorist act, Australia's involvement in the war upon Middle Eastern nations. It was to intimidate the public and, in turn, the Government of Australia so as to bring about a change in governmental policy towards the Muslim situation overseas. I cannot be satisfied beyond reasonable doubt that Jamal's intentions were to cause death or serious injury to members of the public but as the chemicals were plainly designed to be part of an explosive or explosives, there is no doubt, that, at the very least, his intention was that there would be serious damage to property, carrying with it the possible risk of death or serious injury to civilians."
A disputed fact was whether Jamal consciously withdrew himself from an active role in the conspiracy on 13 October 2005. On that issue, Whealy J concluded:
"173 ... I cannot be satisfied, even on the lower standard of the probabilities, that Jamal consciously withdrew from collecting any further chemicals or, if so, why that was done. I accept that he used his false name mobile phone in a manner that was by no means covert, indeed the very opposite. I accept that he did not appear to have any connections with Abu Nasr Benbrika over the two days mentioned earlier. I accept also that certain material was deleted from his computer prior to 8 November 2005, although I note that the CDs containing the deleted material were retained at his home. There is no evidence to suggest that he was involved in the covert meetings organised in late October and early November 2005. While I could not be satisfied beyond reasonable doubt that he was directly involved in the concealment activities, it remains the position that his fingerprints were found on two items in FDT-113, a vehicle obviously used to bury and conceal items collected in relation to the conspiracy. His DNA was found on a sleeping bag in Musso ATE-40N, the vehicle found in early 2006 which was also plainly used in the concealment process. No explanation or evidence has been given about either of these matters.
174 Looking at all these matters overall, while I accept that Jamal was not involved in the purchasing or collection of chemicals after 13 October 2005, I am not satisfied, even on the balance of probabilities, that he had withdrawn from the conspiracy as from that date. I am satisfied beyond reasonable doubt that he remained a participant in the conspiracy until 8 November 2005, although I accept that the conspiracy came to an end either on, or shortly after that date. I accept that there was no relevant inculpatory conduct between his initial arrest on 8 November and his final arrest on 21 December 2005."
The second disputed fact was whether Jamal had abandoned his extremist convictions. The findings on that issue by Whealy J were:
"175 ... I am not persuaded, even on the lower standard of the balance of probabilities, that Jamal's commitment to extremist ideology and actions had ceased as at 13 October 2005. ...
178 Regrettably, I must conclude that I can find no remorse or contrition on the part of the offender Jamal. I can find no acknowledgement by him of the wrongfulness of his actions or acceptance by him of responsibility for what he has done. With the same sense of regret, since he is a young man with no real criminal history, I find it difficult to assess otherwise than that his prospects of rehabilitation are not good. It may be, with the passing of the years, that he will come to acknowledge his responsibility in relation to the offence for which he has been convicted. But at the moment, I see little prospect of it. I take into account his youth and the conditions of his incarceration to date. I take into account the difficult time he will have in prison as a consequence of his classification as an 'AA' offender. I accept, so far as it can be ascertained, that he was lower in the hierarchy than the other men. He was not, on the probabilities, a co-ordinator and his actions were taken at the behest of others. I accept his involvement came about because of his involvement with men who were older and more senior than he. Nevertheless, Jamal had deliberately thrown his lot in with those men and it is not surprising that they were able to persuade him to join the enterprise. In my view, he did so willingly and because of the extremist views and convictions he had embraced. He was committed to the outcome of the enterprise. He shared the views of the others. His role in the conspiracy was important because he was, as Mr Scragg's submissions noted, a valuable asset due to his non-descript appearance, his youth, his Australian accent and apparently affable manner. In addition, he was not subject to the same level of surveillance to which other members of the conspiracy had been exposed. ..."
Ground 9: Poor prospects of rehabilitation finding
Jamal submitted that Whealy J had erred in his finding as to his prospects of rehabilitation in four respects.
The first of these was based on a comparison of Whealy J's findings in relation to prospects of rehabilitation in relation to the other conspirators. Jamal submitted that in respect of the other conspirators, his Honour made a positive finding that their prospects of rehabilitation were poor. In his case, the finding was equivocal in that his Honour found at [178] RoS:
"That his prospects of rehabilitation are not good."
He submitted that this more favourable finding was changed at [180] RoS when his Honour said:
"180 ... While I have determined that the prospects of rehabilitation are poor in the case of each offender ...".
He submitted that there was no reason given for that change in approach, but the effect was that the co-conspirators, who were held to be more culpable and more strident in their fundamentalist views than him, received lengthier parole periods.
Jamal submitted that the second error in relation to Ground 9 was Whealy J's conclusion that a more favourable determination as to the prospects of rehabilitation could only be made if he gave evidence on oath as to remorse. He submitted that this was a wrong approach because findings favourable to rehabilitation could be made without such a direct expression of remorse. He referred to cases where good prospects of rehabilitation had been found despite no acknowledgment of guilt or of remorse. Jamal submitted that the evidence of the Imam should not have been rejected solely on the basis that he had not acknowledged the verdict of the jury.
Jamal submitted that the importance of the evidence of the Imam was that it showed that he had been engaged in listening to the teachings of a moderate Imam and from this an inference favourable to good prospects of rehabilitation could and should have been drawn.
Jamal submitted that Whealy J erred in a third way by failing to take into account his youth at the time of the offending and in failing to focus more on his prospects of rehabilitation than on punishment. Jamal contrasted his Honour's approach with that of Bongiorno J when dealing with Joud in R v Benbrika [2009] VSC 21; 222 FLR 433 at [117], where Bongiorno J said:
"117 Joud is still young. He is entitled to have his youth taken into account in having sentences fixed in this case. His youth is relevant to the possibility of his rehabilitation."
Jamal submitted that the fourth error in relation to Ground 9 was the failure by Whealy J to acknowledge and give appropriate weight to other pieces of evidence which suggested that he did have good prospects of rehabilitation, i.e. that he had not embarked upon a process of desensitisation through the watching of violent videos such as beheadings, that he was "groomed" from a young age by older men whom he came to respect, that before and after his participation in the conspiracy he had a friendship network outside the Muslim community and that during the currency of the conspiracy, and before embarking upon his overt acts, he was heard coming to the defence of Mr Howard in a conversation with Moustafa Cheikho.
Consideration
There is no substance in the first purported error sought to be identified in support of Ground 9. It is an argument based entirely upon terminology and ignores the reasoning behind the finding. It is apparent from a proper reading of [178] RoS that Whealy J's finding that Jamal's prospects of rehabilitation were "not good" was not equivocal. Rather, it was used in the same way as a finding that his prospects of rehabilitation were "poor". In relation to the length of the parole period, his Honour consistently imposed a non-parole period of 75 percent in respect of each of the conspirators, which included Jamal. The fact that the parole period for Jamal was less than that of the other conspirators was simply indicative of the fact that the head sentence imposed on him was less than that imposed on the other conspirators. No error has been demonstrated in this approach.
Whealy J was justified in concluding that the failure of Jamal to give evidence meant that he had not discharged the onus of establishing, on balance, that he had given up the extremist views which he had previously held. As his Honour pointed out, Jamal's failure to give evidence meant that there was no persuasive evidence before the Court in the sentencing proceedings as to his state of mind at that time. The evidence of the Imam and Dr Lennings did not overcome that problem. This is particularly so when Jamal had denied to them that he had committed the offence. In those circumstances, it was not surprising that the Imam gave favourable evidence on the question of rehabilitation because he believed what he had been told.
In the circumstances, Whealy J was entitled to dismiss as self-serving the denials by Jamal to the Imam and Dr Lennings, particularly when such denials traversed the verdict of the jury. Because of the nature of this offence and the importance of its mental element, it was important that his Honour have before him reliable evidence before he could make a favourable finding as to rehabilitation.
On this issue, Whealy J referred to R v Qutami [2001] NSWCCA 353; 127 A Crim R 369. In that judgment, Smart AJ made an observation which has been endorsed by this Court in subsequent judgments:
"58 There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.
59 There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken, great caution will be exercised in respect of the weight, if any, given to those statements."
In the same case, Spigelman CJ said:
"79 I agree with the observations of Smart AJ as to the limited weight that ought to be given to self-serving, untested statements made to experts which are tendered in sentence hearings."
Because of the denials made to the Imam and Dr Lennings, and because of the failure of Jamal to give evidence, Whealy J was entitled to make the finding which he did. No error has been demonstrated.
The third complaint by Jamal to the effect that Whealy J discounted youth as a factor relevant to his prospects of rehabilitation is not made out. On the contrary, his Honour made a finding favourable to Jamal based on his youth when he said:
"I accept his involvement came about because of his involvement with men who were older and more senior than he".
It cannot be said that his Honour ignored Jamal's youth. He did take it into account in a way favourable to Jamal, but he was not able to do so on the issue of rehabilitation. On that issue, it was irrelevant.
In the absence of reliable evidence that Jamal had withdrawn from his extremist beliefs, the fact of his youth could have little weight in determining his prospects of rehabilitation. On that same issue, no assistance can be gained from the sentence imposed on Joud. The circumstances and nature of offending is quite different, as is the maximum penalty.
No error has been demonstrated.
In relation to the last matter relied upon by Jamal in relation to Ground 9, it cannot be said that Whealy J did not take into account evidence relevant to rehabilitation. On the contrary, his Honour carefully set out and assessed the evidence on the issue before reaching his conclusion. As already indicated, the evidence of consultations with a moderate cleric was of little value when it was apparent that what he was telling that cleric was inconsistent with the jury verdict.
Ground 9 has not been made out.
Ground 10: Parity
Jamal submitted that by reference to parity principles, there were significant differences between his offending and that of the other conspirators. He submitted that there was no evidence that he had engaged in the concealment process. The examination of his computer showed only occasional browsing of extremist documents. Finally, the length of time during which he participated in the conspiracy was significantly less than that of the other conspirators. He referred to not attending the bonding camps, not being involved in obtaining ammunition and not attending meetings with Benbrika in October and November 2005 as also being distinguishing features. He submitted that these differences were not adequately reflected in the sentence which he received.
Jamal submitted that the length of time during which participation in the conspiracy took place was regarded as important by Bongiorno J in R v Benbrika [2009] at [235], where his Honour said:
"235 In Haddara's case the fortuitous circumstance that he was arrested only weeks after he joined and was thus unable to contribute very much to the organisation does have the effect of diminishing his criminality when it is compared to that of a longer serving member. Undoubtedly, as the prosecutor argued, had he not been arrested he would have been a very valuable and perhaps very dangerous member into the future. The fact that that did not occur must enure to his benefit on sentence."
Jamal submitted that it was legitimate to have regard to the sentence imposed on Benbrika (15 years), which was less than his sentence, even though more serious findings had been made against Benbrika to the effect that he had convinced "impressionable prospective members of the organisation to the way of violent jihad and his moral culpability in fomenting the misconceptions and hatred which sustained the interests of the organisation and his activities were at the high end of the scale of seriousness": Benbrika v R [2010] at [564].
Consideration
Fundamental to this ground of appeal is Jamal's submission that many of the specific acts of the conspirators, which went to the objective seriousness of the offence, could not be attributed to him. The difficulty with the submission is that it fails to have regard to the nature of the offence for which he was sentenced, i.e. conspiracy to do an act in preparation for a terrorist act or acts. The findings as to the objective seriousness of the conspiracy, which themselves are not challenged, relate to the conspiracy to which he was a party. Jamal was not being sentenced for the individual acts which he undertook but for his participation in that conspiracy. As Whealy J noted in relation to all of the appellants, "The level of criminality involved in the present conspiracy was far more substantial than the criminality involved in the individual acts of each offender". At [64] RoS his Honour set out the five reasons why this was so (see [636] above). No part of that reasoning has been challenged by the appellants.
Moreover, there was evidence which linked Jamal to such matters as the concealment process (his fingerprints on items in the Musso FTD-113, a vehicle which was used to bury and conceal items in relation to the conspiracy, and his DNA was found on a sleeping bag, which was in the Musso ATE-40N which was also used in the concealment process). These were some of the matters which Whealy J took into account when rejecting Jamal's submission that he had withdrawn from the conspiracy as of 13 October 2005.
That Jamal joined the conspiracy after the other appellants does not greatly affect the objective seriousness of his participation. Whealy J was clearly aware of the fact that he had joined after the other conspirators. The facts are quite different to those considered in relation to Haddara. Haddara was convicted of being a member of a terrorist organisation but had become a member only weeks before the arrests. Given the nature of that offence, it is easy to see why the length of his membership was regarded as a discounting factor.
It should also be noted that Haddara had not been able to contribute much to the organisation which he had joined. In contrast Jamal, although he joined later than the other conspirators, had made a significant contribution to the conspiracy. He was involved in the ordering of chemicals and the later attempts to collect them from Auto King and Chemical Cleaning Solutions. Those activities were undertaken with the use of false names and telephones in false names. He was, as his counsel accepted, "a valuable asset" to the conspiracy.
The reliance on the sentence imposed on Benbrika does not give rise to issues of parity and is unhelpful. Most obviously, Benbrika was not a co-offender. He was convicted of different offences and the factual background to the offending in his case was significantly different to that of Jamal. An important factor which Jamal had to accept, but which was absent in the case of Benbrika, was that this conspiracy was well underway with action being undertaken to prepare for a terrorist act.
Whealy J was aware that Jamal's position was at the lower end of the hierarchy in the conspiracy. This and the length of time during which he participated in the conspiracy constituted the difference between him and the other conspirators. The difference was not a significant one and was adequately reflected by the difference in the sentences which his Honour imposed. Despite those differences, as a member of the conspiracy, his criminality remained at a significant level. There was no proper basis for Jamal having a justifiable sense of grievance. This ground of appeal has not been made out.
Leave to appeal should be granted but the appeal dismissed.
CONCLUSION
None of the grounds of appeal in the Applications for Leave to Appeal Against Sentence has been made out. The orders of the Court are:
Mohamed Ali Elomar
(1) Appeal against conviction dismissed;
(2) Leave granted to appeal against sentence;
(3) Appeal dismissed.
Abdul Rhakib Hasan
(1) Appeal against conviction dismissed;
(2) Leave granted to appeal against sentence;
(3) Appeal dismissed.
Khaled Cheikho
(1) Appeal against conviction dismissed;
(2) Leave granted to appeal against sentence;
(3) Appeal dismissed.
Moustafa Cheikho
(1) Appeal against conviction dismissed;
(2) Leave granted to appeal against sentence;
(3) Appeal dismissed.
Mohammed Omar Jamal
(1) Appeal against conviction dismissed;
(2) Leave granted to appeal against sentence;
(3) Appeal dismissed.
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Decision last updated: 12 December 2014
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