Regina (C'Wealth) v Baladjam [No 11]

[2008] NSWSC 1436

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 11] [2008] NSWSC 1436
HEARING DATE(S):	09/04/08
JUDGMENT DATE :	16 April 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Order that evidence of training camp activities be allowed.
CATCHWORDS:	CRIMINAL LAW - Evidence - Conspiracy rules - Relevance - s 56 Evidence Act 1995
LEGISLATION CITED:	Criminal Code Act 1995 Evidence Act 1995
CASES CITED:	Ahern v The Queen (1988) 165 CLR 87 at 94-95 Odgers Uniform Evidence Law 5th Edition at page 114 Papakosmos v The Queen (1999) 196 CLR 297 at 307; 312 and 321-322 Smith v The Queen [2001] 206 CLR 650 at 653 R v Chai (1992) 27 NSWLR 153 at 191 R v Masters (1992) 26 NSWLR at 465-6
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 11] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA
FILE NUMBER(S):	SC 2007/2397001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001
COUNSEL:	Ms W. Abraham QC; G. Bellew SC; C O'Donnell; Ms S McNaughton - Crown M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; E Ozen - Accused Elomar Ms D Yehia; Ms S Beckett - Accused Hasan G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; P King - Accused Touma
SOLICITORS:	Commonwealth DPP Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: WEDNESDAY 16 April 2008

2007/2397001 - Regina v Omar BALADJAM [No 11]
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2399001 - Regina v Mohamed Ali ELOMAR
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2452001 - Regina v Mohammed Omar JAMAL
2007/2454001 - Regina v Mirsad MULAHALILOVIC
2007/2396001 - Regina v Khaled SHARROUF
2007/2455001 - Regina v Mazen TOUMA

JUDGMENT

1 HIS HONOUR: There are for decision a series of applications to exclude from the trial evidence of two 2005 camping trips in rural New South Wales. The participants in each case were a number of the accused.

2 The first camp occurred between 16 and 18 March 2005. It related to a rural property named Curranyalpa. This property was hired out to hunting/shooting groups and was located 56 kilometres south of Louth and approximately 140 kilometres southwest of Bourke. The Crown case is that it was booked under a false name. The Crown further alleges that the camp was attended by Hasan, Sharrouf, Khaled Cheikho, Elomar and three other men.

3 On 20 March 2005, police attended the campsite at Curranyalpa and seized a number of items, including spent cartridges and bullets. Examination showed that a number of bullets had been fired at trees and there was other evidence to show that animals were shot as well. Ballistic evidence revealed that a number of firearms had been used.

4 The second camping trip took place between 12 and 14 April at Mulga Creek Station, about 70 kilometres southeast of Bourke. The Crown case is that this trip was also booked in a false name and that it was attended by Hasan, Touma, Elomar, Moustafa Cheikho and Khaled Cheikho.

5 Once again, police examined the campsite at the conclusion of the camping trip. Once again, they found a number of fired cartridges and other items. Ballistic evidence demonstrated, once again, that different firearms were used. There was a commonality between the firearms used at both camps; and cartridges, in one instance, matched a rifle located during the execution of a search warrant at Elomar's premises on 27 June 2005.

6 The Crown wishes to go to the jury in relation to this evidence emphasising especially the following:-

(a) The camps were attended by various accused
(b) The camps were booked for very remote locations, each a considerable distance from Sydney
(c) The camps were held for short periods
(d) The camps were booked in false names
(e) The camps were booked using mobile telephones in false names
(f) The camps involved the attendees failing to complete the necessary paperwork which was required
(g) The camps involved the use of a number of firearms.

7 In addition, Curranyalpa was booked using a false story. Neither camp was mentioned or spoken about by any of the attendees on the telephone, even though surveillance was being used on their telephone services.

8 For the purposes of the argument, the Crown identified in considerable detail the evidence which will be sought to be led against those of the accused who had made submissions seeking to exclude the evidence. They were Touma, Khaled Cheikho and Jamal. This evidence referred not only to the direct activities of the particular accused but the evidence of the activities of others of the accused allegedly in furtherance of the objects of the conspiracy. The Crown argued that the evidence of the camping trips was relevant and admissible as part of the Crown's circumstantial case.

9 The nature of the Crown case has been detailed in previous decisions. In general terms the Crown case is that each accused was party to an agreement to do an act or acts in preparation for a terrorist act or acts. Each of the accused believed that he was a devout Muslim. Each of the accused held certain beliefs in common relating to their interpretation of the Muslim faith. Their common beliefs included the following:

(a) Islam throughout the world was under attack and there was a religious obligation to come to the defence of Islam and other Muslims;

(b) jihad was the primary means by which this religious obligation should be fulfilled;

(c) a significant and legitimate aspect of the fulfilment of this obligation was violent jihad, which involved the application of force and violence, including, in certain circumstances, the killing of "infidels" or "kuffir", that is, persons who do not have the same fundamental beliefs.

10 In accordance with the holding of those common beliefs, the accused, according to the Crown case, entered into an agreement to obtain the capacity or capability to prepare for (or more accurately, perhaps, in preparation for) a terrorist act or terrorist acts. This involved equipping themselves with knowledge, ability and means in preparation for a terrorist act or acts. In furtherance of the agreement, the Crown alleges that the accused:

(a) obtained or attempted to obtain chemicals and other relevant materials which could be used (directly and/or indirectly) in the construction of an explosive device;

(b) obtain or attempted to obtain weaponry and ammunition;

(c) possessed large amounts of extremist and instructional material.

Submissions on behalf of the accused

11 Mr King for Touma argued that evidence relating to both camping trips was inadmissible against his client. Counsel maintained that evidence relating to the Curranyalpa trip was not admissible against his client because Touma had not attended that camp. The evidence of the Mulga Creek camp (which Touma did attend), was not admissible because no adverse inference could be drawn against Mr Touma from his observed activities at that camp. Indeed, Mr King said the only evidence of this nature was that Touma had been seen, at one stage, sitting on a tarpaulin.

12 Secondly, Mr King objected to any witness who was to be called being permitted to refer to the camping trips as "training trips".

13 Finally, Mr King submitted that s 137 of the Evidence Act 1995 required the exclusion of all this material. Counsel argued that the probative value of the evidence was outweighed by the risk of unfair prejudice. The prejudice was said to be that the jury might reason that these otherwise innocent camping activities were actions in preparation for a terrorist act.

14 Mr Scragg for Jamal, and Ms Yehia for Hasan, each had objections to various aspects of the evidence. Indeed, Mr Scragg had a fundamental objection to the material based on the proposition that his client may not properly be thought to have joined the conspiracy, assuming he joined it at all, before the camping trips. Both counsel, however, agreed to defer their arguments until a later occasion.

15 Mr Waterstreet and Mr Lange both argued for the rejection of the evidence against their client, Khaled Cheikho.

16 First, Mr Waterstreet argued that the evidence of the camping trips did not have the capacity to bear upon the proof of the existence and nature of the conspiracy at all.

17 Secondly, there was argument about the relevance and categorisation of the identification of certain people from Melbourne. These people had been at the camps but were not charged with conspiracy in this trial. This second argument, it was agreed, could also be deferred until a later occasion.

18 Finally, Mr Lange addressed the Court on a topic briefly touched upon by Mr Waterstreet. Mr Lange said the Crown should not be allowed to address the jury on the basis that these camps were "training camps" or that "training" took place at those camps. This, it must be said, was an unusual argument. Mr Lange, however, pressed it vigorously. He suggested that the use of the term "training camp" would lead the jury to speculate or to reason improperly. This would be especially so where evidence was to be admitted against one accused, Moustafa Cheikho, that he had, in 2001, participated in a training camp run by a proscribed organisation, LeT, in Pakistan.

19 It will be seen that, in the ultimate, the arguments I have to decide are within a narrow compass. It may be helpful for this decision, and for others I may have to give, if I set out the legal framework against which decisions such as those involved here have to be given. I trust I will be forgiven for repeating matters contained in earlier decisions and, for that matter, set out during the course of argument yesterday.

Legal Framework

20 One of the cardinal provisions in the Evidence Act 1995 is s 56. In Odgers Uniform Evidence Law 5th Edition at page 114 it is described as “the key provision regarding the admissibility of evidence” in Chapter 3. The section provides: -

“56(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceedings.
(2) Evidence that is not relevant in the proceeding is not admissible.”

21 As is recognised and stated by the High Court in Smith v The Queen [2001] 206 CLR 650 at 653, the first question to be asked when an issue of the present kind arises is whether the evidence is relevant. Although questions of relevance may raise “nice questions of judgment”, no discretion falls to be exercised. Evidence is either relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. The simple fact is that irrelevant evidence may not be received. These propositions are fundamental to the law of evidence and well settled.

22 In determining relevance in a criminal trial, it is important, and indeed fundamental to identify the ultimate issues. These will be ordinarily expressed in terms of the elements of the offence with which the accused stands charged in the light of the defence, if known. Section 55 of the Evidence Act states that evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. Behind these ultimate issues there will often be many issues about facts relevant to facts in issue (Smith at 654; Papakosmos v The Queen (1999) 196 CLR 297 at 307; 312 and 321-322.

23 For present purposes, the facts in issue might be described in the following way: The Crown must prove beyond reasonable doubt that each of the accused entered into the agreement alleged by the Crown with one or more other persons (physical element); that each accused did so intentionally (fault element); and that each accused, and at least one other party to the agreement, must have intended that an offence would be committed pursuant to the agreement (this is the intention required by section 11.5(b) of the Criminal Code Act 1995). Further, each accused, or at least one other party to the agreement, must have committed an overt act pursuant to the agreement (this is the stipulation contained in section 11.5(c) of Criminal Code Act 1995).

24 In relation to a charge that a person has conspired with others to commit a criminal offence or offences, established authority points to three propositions relevant to the present arguments. In identifying these matters, I leave to one side for the moment the requirements of the Criminal Code Act 1995 relating to a conspiracy charge. These three matters are:-

(a) In many instances the same facts will be relied on by the Crown to establish both the existence of the conspiracy and the participation of the individual conspirators in it. This will not always be so, but it will often be the case. (A general scrutiny of the Crown case in the present matter reveals that this is a case where the Crown will rely on the same matters to prove both the existence of the conspiracy and the participation of the individual conspirators in it. Apart from issues as to when several of the conspirators were alleged to have joined the plot, there is said to be one conspiracy pursuing the same objects over about one and a half years. Each accused, in general terms, is said to have been involved in furthering the objects of the conspiracy in one way or another continuously throughout this time.)
(b) The co-conspirators' rule will, as a consequence, apply in general terms to the individual actions to be relied on by the Crown so as to make these actions admissible against the other alleged conspirators. This will be in proof of the participation of the accused in the conspiracy. Quite apart from the co-conspirators' rule, those individual acts may be relied upon to prove the existence of the conspiracy, its scope and nature and its continued, uninterrupted existence throughout the duration of the conspiracy.
(c) The method and timing of the determination of issues relating to whether there is reasonable evidence, apart from the acts or words of other conspirators, that a particular accused was also a participant falls to be determined by the trial Judge at the close of the Crown case or before jury address.

25 The authorities founding these propositions are Ahern v The Queen (1988) 165 CLR 87 at 94-95; 100 and 104. See also R v Chai (1992) 27 NSWLR 153 at 191; R v Masters (1992) 26 NSWLR at 465-6.

26 The relevant passages that underscore these propositions are at pages 94-95, 100 and 104 of Ahern. I will set out the first two. The third appears in one of the decisions I gave yesterday, when I was dealing with Mr Scragg’s submission re his client Jamal.

27 At pages 94-95, the Court said: -

“That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others. Thus, anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation.”

28 The Court then likened the situation and justified the situation of that rule to an analogy of people being partners in crime.

29 The second major point made by the High Court in Ahern's case was that the question of whether there was reasonable independent evidence of the participation of an alleged conspirator as a ground for use against him of evidence of the acts and declarations of others taking place in his absence is a matter for the trial judge. That appears at page 100. Their honours said:

“In our view the test adopted in Tripodi is an appropriate one. Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant.”

Resolution of the issues

30 I accept that, for the reasons advanced by the Crown, the evidence of the camping trips is both relevant and admissible against Touma and Khaled Cheikho. It is, of course, relevant against the other accused but no separate submissions were made in this regard on their behalf (save for Mr Scragg's submissions which will be dealt with at a later time).

31 In particular, I accept the Crown submission that suggests that evidence of the training camps may be seen a relatively important part of the overall circumstantial case relied upon by the Crown in proof of the charge. The evidence is capable of demonstrating that the conspirators have, in a secret and clandestine fashion, selected a remote location where their association, bonding and physical activities, including the firing of a number of unidentified weapons, may be pursued free from undue surveillance or attention. The nature of these secretive activities may, of course, in themselves be quite innocent. But the very secrecy surrounding them and their nature (shooting of weapons, et cetera) is clearly relevant to the assessment of the establishment of the physical and fault elements (and other matters) I have identified in examining the facts in issue.

32 Khaled Cheikho, of course, was at both camps. But the fact that Touma was not at the first of the camps does not mean that the evidence is not admissible against him. At the very least it is admissible against him to show the nature and scope of the conspiracy. Depending on the view that is taken of the overall evidence at the close of the Crown case, it may also be evidence that is admissible against him to show the participation of his “partners in crime” in the conspiracy even though he was absent from the first camp. Similarly, the evidence of the events relating to the second camp is plainly relevant and admissible since it bears on the same essential elements of the offence I have identified.

33 Mr King's submissions, with great respect, appear to overlook the fact that all this material is not part of the Crown circumstantial case. It is not necessary that his client, Mr Touma, be observed at the Mulga Creek training camp carrying out an activity of an untoward or criminal nature. The evidence of all that happened at both camps is admissible as part of the overall material the jury may properly consider when considering whether, having regard to the whole of the Crown case, the Crown has established the charge beyond reasonable doubt.

34 In addition, of course, Touma's presence at the second camp may also be seen against the background of his extensive involvement with the collection of ammunition, a process commencing shortly after the Mulga Creek trip and culminating in the seizure by police of a large amount of ammunition apparently under his control in early June. The camping trips may also be seen against the background of Touma's fairly extensive embrace of extremist views relating to Muslims generally and jihad in particular.

35 There is no need for me to examine specifically details of the case against Khaled Cheikho. The Crown has outlined this in submissions. The nature of that case makes it equally clear that, essentially for the same reasons, the evidence of the camping trips is admissible against Khaled Cheikho as part of the Crown's circumstantial case in proof of the physical and fault elements of the charge.

36 I turn finally to Mr Lange's submission. There appeared to be two aspects to this submission. While Mr Lange accepted that it might be relevant for the Crown to lead evidence of these camps in terms of the association of the men and the secrecy surrounding the trips generally, counsel took issue with the Crown being allowed to use the word "training" when it made submissions to the jury. The second aspect of the argument seemed to suggest that such an inference would be not open to the Crown so that such a submission would be tainted with impropriety.

37 I am afraid that I cannot agree with either of these submissions. As to the first, the Crown is entitled to put whatever label it wants on the nature of these camping trips. In the same way, the defence will be entitled to ask the jury to find that these were, to use Mr Waterstreet's phrase, simply hunting trips or even something less than that.

38 In a murder trial, to take an example by way of analogy, the Crown often points to a circumstantial case and then addresses the jury on the basis that what it demonstrates is a calculated, clear and cold-blooded murder. The defence, on the other hand, will simply say that a reasonable evaluation of the Crown case shows that there is a reasonable possibility that an unfortunate and unavoidable accident may have occurred. Of course, the Crown description will be prejudicial. But that is because the Crown submits that the proper interpretation of the circumstantial case leads to an unpleasant conclusion.

39 That seems to me to be precisely the case here. On one view of it, the evidence is capable of suggestion that these men wanted to remove themselves from surveillance so that they could, in a private and secret way, bond with one another, prepare themselves mentally, and improve their physical capacity with weapons so as to further, in a general sense, the objects of the conspiracy. That seems to me to be an available inference from an overall assessment of their activities in relation to the camps. If that be so, it is not inappropriate or improper for the Crown to make a suggestion to the jury that these camps may be viewed as "training camps" in furtherance of the objects of the conspiracy. By the same token, the defence will be entitled to ask the jury to infer that these camping trips were very unsophisticated; that they were "boys' outings" of an innocent nature; and that the use of firearms there was no different from the situation when other people hired the properties for shooting or hunting purposes. There will be nothing inappropriate or improper about either submission.

40 The jury will have the task to examine the facts of the camping trips as part of, and in the light of, the overall Crown circumstantial case. It will be a matter for the jury to attach such weight, if any, to the evidence of the events at the camping trips. It will be a matter for the jury to accept or reject the Crown submission.

41 I simply fail to see that because there will be evidence from Kwon about the nature of training in a LeT terrorist camp in Pakistan in 2001 that any real link will be established between the nature of that training and the rather unsophisticated activities of the accused at the New South Wales camping trips. I have not the slightest doubt that if any such link be suggested, there will be ample submissions from the defence to show that such a comparison should not be drawn in the first place; and, secondly, that any such comparison might well favour an innocent view of the New South Wales camping trips. Equally, I do not imagine that the Crown will meekly accept such a submission. I would expect the Crown to take issue with it. None of this, in my view, engenders unfair prejudice. It is simply the playing out of the adversarial task in a criminal trial situation. It will be tempered, wherever it is necessary, by direction from the Court so that the presumption of innocence is maintained and the burden of proof properly allocated.

42 I am satisfied that the evidence of the camping trips may be admitted against the accused generally and, in relation to the arguments I have heard, specifically against Touma and Khaled Cheikho. I am satisfied that the evidence does not require exclusion under s 137. I see no occasion to curtail the Crown's ability to suggest to the jury that these trips might be regarded as "training camps". I do not need to deal with Mr King's separate submission in this regard because I do not understand that any witness will use the expression "training camp". The Crown will not invite any witness to do so.

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