Regina (C'Wealth) v Baladjam [No 19]

[2008] NSWSC 1441

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 19] [2008] NSWSC 1441
HEARING DATE(S):	19/05/08; 20/05/08
JUDGMENT DATE :	28 May 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	I decline to exclude the evidence described as "Melbourne" evidence.
CATCHWORDS:	CRIMINAL LAW - Principles applicable to evidence in a conspiracy trial - Common law principles not over thrown by Evidence) Act 1995 - s 57(2) and s 87(2) - CRIMINAL LAW - Relevance and exclusion of evidence under s 137 of Evidence Act 1995
LEGISLATION CITED:	Evidence Act 1995 Trade Practices Act Criminal Code (ACT) Criminal Code Act 1995 Quarantine Act Road Transport (Alcohol & Drugs) Act Telecommunications (Interception) Act 1979
CASES CITED:	Ahern v R (1988) 165 CLR 87 at 100, 103 Australian Competition & Consumer Commission v Leahy Petroleum pty Ltd & Ors [2007] 160 FCR 321 Gillies "The Law of Criminal Conspiracy" 2nd Edition, Chapter 13 page 176 Jackson v TCN Channel 9 Pty Limited [2002] NSWSC 1229 (at 40, per Adams J) Caratti v R [2000] 157 FLR 241 MacIlwaine v Ramsay Food Packaging Pty Limited [2006] FCA 828 Masters v R (1992) 26 NSWLR 450 at 461 Smith v The Queen [2001] 206 CLR 650 at (6) Tripodi v R (1961) 104 CLR 1 at 6-7 R v Baladjam & Ors [No 11] unreported 16 April 2008 R v Chai (1992) 27 NSWLR 153 R v Hayter [2005] 1 WLR 605; [2005] UKHL 6 R v Louden (1995) 37 NSWLR at 683 R v MacRaild (unreported) NSWCCA, Sully, Dunford and Simpson JJ R v Masters & Wunderlich (1992) 26 NSWLR
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 19] 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. 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 28 May 2008

2007/2397001 - Regina v Omar BALADJAM [No 19]
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 - Application to exclude “Melbourne evidence”

1 HIS HONOUR: This is an application brought on behalf of the accused generally. The application seeks to exclude from the trial material, which has been referred to as "the Melbourne evidence".

2 Mr Dalton SC presented the principal argument on behalf of his client, Mr Elomar. Generally, however, he was supported by all other defence counsel in relation to his principal submissions. In addition, Mr Dalton was supported by separate submissions from Ms Yehia. Those submissions were made on behalf of her client, Mr Hasan. Ms Yehia’s submissions were also supported by other counsel.

3 Mr Buscombe made a brief submission on behalf of his client, Omar Baladjam. This too was a general submission that was shared by others.

4 By way of contrast, Mr Waterstreet made submissions that were primarily directed to the position of his client, Khaled Cheikho. Mr Scragg took this position as well on behalf of his client, Mr Jamal. I will include in this decision references to the submissions made on behalf of Khaled Cheikho and Jamal. It may be assumed, however, that in general much of the tenour of this decision will be applicable to the separate submissions made regarding those two accused men.

The Melbourne group

5 It may be convenient if I set out in a general way the nature of the "Melbourne evidence" and the way in which the Crown says it should form part of the case against each of the accused at trial.

6 The Melbourne group comprised a number of men who are presently on trial in Melbourne in relation to charges of belonging to a terrorist organisation. One of those defendants is a Melbourne cleric named Abdul Benbrika. It is said that he was an Islamist who had publicly declared his support for militant or violent jihad. It will be alleged in the Sydney trial that Benbrika communicated with certain of the present accused. It will be alleged that, in Sydney, this contact was often covert in nature, involving, for example, airline travel being booked in false names. Benbrika had regular contact with a number of the Sydney accused, although, admittedly, his principal regular contact appeared to have been with Khaled Sharrouf. The Crown wishes to lead evidence of conversations intercepted on his telephone service, and in listening devices, in which extremist language and notions were used or discussed.

7 Others of the Melbourne group who adhered to Benbrika's extremist views included Atik, Joud, Raad and Sayadi. The Crown case is that these men communicated with certain of the accused in Sydney. Again, the contact was often covert in nature involving the use of covert and public telephones, and involving airline travel being booked in false names. The Crown case is that Benbrika and Joud maintained regular contact with Hasan, Elomar, Sharrouf, Moustafa Cheikho, Khaled Cheikho and Jamal.

8 The Crown has listed in its written submissions examples of some of the Sydney accused associating or having connection with Benbrika and some members of the Melbourne group. These include:

(a) Hasan, Elomar and Moustafa Cheikho's visit to Raad and Benbrika in Melbourne on 30-31 August 2004. (On the return trip from Melbourne on the evening of 30 August 2004, the vehicle in which Hasan, Elomar and Moustafa Cheikho were travelling (registered number ULC 693) was stopped shortly after midnight at Sutton Forest by the New South Wales Police. When questioned by the police as to where they had travelled from, Moustafa Cheikho is alleged to have falsely stated "we've been to Canberra...we were looking at buying a boat".)

(b) On 17 September 2004 at 1/56 Birchwood Boulevard, Hoppers Crossing, Victoria, a search was made of Joud's computer. This located a number of documents, which, amongst other things, provided instructions on the manufacture of improvised explosive devices, firearms and other weapons. The "weapons caching" section of one of the documents contained instructions on the storage of weapons and ammunition using PVC pipes and "slip on type end caps", with a recommended best choice for sealing them with PVC cement. The document further recommended sealing the ammunition into airtight containers or zip lock bags before placing it in the containers. (The Crown case suggests a connection between this material and the fact that, in November 2005, at a time when the accused were aware that they were likely to be "raided", a number of activities occurred, which included the obtaining of items such as those referred to in "The White Resistance Manual". This involved a number of the accused obtaining PVC pipes, end caps, cement solvent, airtight containers, et cetera: Despite the fact that this material was obtained shortly before the arrest of the accused, many of these items, and indeed a large amount of "ammunition", have not been located.)

(c) On 6 December 2004, Benbrika travelled from Melbourne to Sydney by plane. He travelled under a false name. While in Sydney, Joud, Raad, Sayadi and Benbrika were observed visiting a camping store. They spent the afternoon at Sharrouf's residence. Hasan was also there. (On 31 May 2004 and on other occasions, Hasan had attended at various branches of a well-known camping and disposal store and purchased large quantities of camping equipment. He gave a false name and paid in cash. He told the sales staff the equipment he was purchasing was "for a youth group", although the clothing and other equipment were in adult sizes.

(d) On 29 December 2004 at 8.56am Hasan visited Benbrika in person, urgently, having been stopped and searched by police in the vicinity of Lucas Heights the day before.

(e) Hasan and Sharrouf travelled to Melbourne to visit Benbrika on 23 February 2005. During this meeting, they appeared, according to the Crown, to be printing material from a CD entitled "A Guide for the Mujahideen" and they also discussed another book of which Benbrika had only printed one side, entitled "Martyrdom Operations". Later, when Joud was present, Benbrika discussed living in an Islamic state and fighting against "them" if their law threatened Sharia law. He then discussed preparing the mujahideen, stating:

“Everyone has to prepare himself. Or to die or to be gaoled...but we have to be careful. If we want to die for jihad, we do maximum damage. Maximum damage. Damage their buildings with everything and damage their lives, just to show. That's what we're waiting for. You be careful...trust no one.”


(f) Whilst at Benbrika's home, there was a discussion among those present about purchasing or ordering laboratory equipment from Haines (this was a company (Haines Educational Pty Limited) based at Oakley, Victoria. (Hasan's wife had contacted the company on 11 August 2004 and asked for a catalogue. The catalogue included laboratory equipment.) During the course of the conversation on 23 February 2005, reference was made to items in the Haines catalogue, to prices, and to a list, which had been made, including a reference to quantities of equipment.

(g) The “discussion” correlated with a handwritten list of an order, which was ultimately placed with Haines on 2 June 2005. This order was placed by way of a fax sent to Haines from a fax machine at Sayers Road Pharmacy, Hoppers Crossing, Victoria. (This business was located about 1.5 kilometres by road from Joud's premises). The order was in the name of "Peter Drabjic". The items ordered were laboratory equipment which, according to the Crown case, could be used in the manufacture of explosive devices, et cetera. A handwritten list of these items with the Haines code numbers and the quantities required was found at Joud's premises during execution of a search warrant on 22 June 2005.

(h) Hasan and Joud's fingerprints were found on the document located at Joud's premises. The document was in the handwriting of Elomar. A follow-up call in relation to the order was received by Haines on 14 June 2005. The inquirer gave a contact number 0421 002 054. This telephone had been activated on 14 June 2005 in a false name. The receipt for this telephone was located at Hasan's premises on 27 June 2005 during the execution of a search warrant. The address given for the “false name” telephone service was 26 Morris Road, Hoppers Crossing, Victoria (the same street and suburb as Joud's premises). The telephone service was later shown to be used by Hasan in making inquiries with a firm called Techni Ice.

(i) On 27 June 2005 there was a discussion between Sharrouf and Joud concerning the fact that Benbrika's home had been "raided" by the police and that this had happened to "three brothers as well". There was then a mutual discussion between the two men about this topic, comparing the situation in Sydney and Melbourne. The discussion included a reference to the possibility of police intercepting their telephone calls.

(j) On 27 July 2005 there was a conversation between Sharrouf, Benbrika and others during a car journey, which was captured on a listening device. The conversation included reference to one Taj el-Din. He was apparently a Muslim who had informed on others. Sharrouf was condemnatory of the informer ("may God curse him").

(k) Between 31 July and 2 August 2005; Benbrika visited Sydney. He was picked up by Sharrouf. Jamal was with Benbrika, having driven him back to Melbourne a few days earlier. There was a meeting at the ASJA Prayer Hall. Hasan and Elomar were seen near the hall at the time. Later Benbrika delivered a sermon at Sharrouf's home. A number of the accused were present then and later.

(l) A number of the accused watched Benbrika's performance on television during The 7.30 Report (ABC TV 4 August 2005). During this interview, Benbrika praised Osama bin Laden and stressed the importance and value of jihad. He proclaimed the only law to be spread ”here or anywhere” was the law of Islam.

(m) Benbrika came back to Sydney on 9 August 2005 to give a "lesson". During the visit he was seen with Sharrouf, Khaled Cheikho, Moustafa Cheikho, Hasan and Jamal.

(n) There was a further visit on 31 October 2005. Benbrika came to Sydney Airport where he was collected by Moustafa Cheikho and Sharrouf. He gave a lesson on that day.

Relevance of the evidence to the Crown case

9 The Crown, in its submissions, has identified the essential elements of the offence charged against each accused in the present matter. The Crown argued that evidence of the kind identified in the examples given above is relevant to the fact and nature of the conspiracy. It is relevant to the intention of various of the accused in undertaking activities in furtherance of the conspiracy. It is also relevant to the defence case likely to be raised, namely, that the actions of the individual co-conspirators may reasonably be explained in an innocent fashion and without reference to violent jihad.

10 With that type of reliance in mind, the Crown has argued that the accused undertook activities in furtherance of the conspiracy against a background where, amongst other things:

(a) They were receiving advice and inspiration from Benbrika who supported - promoted violent jihad;
(b) the accused were being supplied by Benbrika and others with extremist material, including instructional material;
(c) the accused were assisted by Benbrika and Joud in their attempts to obtain large quantities of laboratory equipment.

11 The Crown acknowledged that the character of the activities that were undertaken by each of the accused, and whether or not they support the inference of the conspiracy as alleged by the Crown, is obviously to be a matter of serious contest in the trial. The Crown argued that the circumstances in which these activities were being undertaken (including the Melbourne evidence) was relevant to support the inferences contended for by the Crown.

12 The Crown argued that the nature, context and circumstances of the accused's contact with Benbrika, and with others who shared his views, was highly probative. The Crown argued that Benbrika was being contacted regularly as an important source of extremist religious inspiration and advice, at a time when the accused were actively sourcing materials consistent with an agreement to do acts in preparation for a terrorist act or acts.

13 The Crown argued that, in general terms, the Melbourne evidence was admissible against all the accused to prove the existence, scope and nature of the conspiracy. Further, it contended that some aspects of the evidence were admissible to prove the participation of the accused in the conspiracy. The Crown argued that, in accordance with established authority, the admissibility of the evidence on the first basis was circumstantial evidence and did not infringe the hearsay rule (Ahern v R (1988) 165 CLR 87 at 100, 103; Tripodi v R (1961) 104 CLR 1 at 6-7; Masters v R (1992) 26 NSWLR 450 at 461.)

14 In relation to the second basis of admissibility, the Crown argued again in accordance with established authority, that if there were reasonable independent evidence of an accused's participation in the conspiracy, and the evidence sought to be tendered was the acts of a co-conspirator in furtherance of the conspiracy, it would be admissible against the accused to prove his participation in the conspiracy, even though he was absent or not present at the time. In relation to this aspect, the Crown submitted that the appropriate time for the trial Judge to determine if there was reasonable evidence of preconcert was at the conclusion of the Crown case.

15 Although the Crown did not entirely agree with the manner in which the defence submissions “truncated” the Melbourne evidence for the purposes of analysis, and suggested that that approach ("dealing with each aspect of the evidence in isolation") was incorrect, the Crown, for the purposes of argument, made its analysis in accordance with the sequence suggested by Mr Dalton's submissions. The Crown, however, made the point that the relevance of the Melbourne evidence fell to be determined by considering it in the context of the entire Crown case. For example, Mr Dalton dealt with evidence relating directly to "overt acts" as a separate topic from evidence not so described (this was referred to by Mr Dalton as "annexure 2" material.) The Crown pointed out that some of this evidence, although not characterised as an overt act or acts, was nevertheless evidence admissible of acts done in furtherance of the conspiracy.

Submissions made by Mr Dalton on behalf of Elomar and adopted by the accused generally

16 It will be convenient if I now turn to the submissions by Mr Dalton. Mr Dalton's submissions were predicated upon three assumptions. First, there was the assumption that the Crown adhered to its stated position that none of the Melbourne group were co-conspirators with the accused in relation to the Sydney conspiracy. Secondly, there was the assumption that the "overt acts" listed as part of the Crown case statement were all of the acts and declarations of the alleged conspirators (and/or their agents) which had been made in furtherance of the alleged conspiracy. (As I have indicated above, the Crown did not accept the accuracy of this second assumption.) Thirdly, the submissions were predicated, admittedly prematurely, on the basis that the co-accused Sharrouf was likely to be found unfit to be tried and would not face trial jointly with the other co-accused. (This is a reference to a fitness hearing which was scheduled to take place (and in fact did take place) on 9 May 2008. It was a matter of common understanding at the time the submissions were made, that psychiatric evidence assembled by the Crown and the legal representatives for the accused Sharrouf was in agreement as to his unfitness to be tried at this time).

17 Against the background of these assumptions, Mr Dalton's submissions divided the evidence into a number of categories. First, there were those parts of the evidence, which had been particularised as "overt acts". Secondly, there were those parts of the Melbourne evidence, which did not fall into this category. These were described by counsel as the matters appearing in "annexure 2" to his written submissions.

18 The third category of evidence related to the documents found on Joud's computer in the search of his premises on 17 September 2004. Finally, there was evidence relating to the visit by some of the accused to Lucas Heights on 28 December 2004, and to its suggested connection with Benbrika on the following day.

The overt acts

19 Mr Dalton specifically addressed in his written submissions Overt Acts 10, 12, 19 and 20, 21 and 26. In oral submissions, Mr Dalton addressed other factual matters in the Crown case statement that were said by the Crown, during the course of its written submissions, to be admissible as acts done in furtherance of the conspiracy. The thrust of Mr Dalton's submissions in relation to the overt acts may be well understood against the background of his argument regarding overt acts number 10, 19, 20 and 21. The subject matter of the evidence relating to these matters embraces the Haines chemical topic. On 23 February 2005, Hasan and Sharrouf discussed an order for laboratory equipment from the Haines company; on 4 May 2005, Hasan and Elomar discussed the preparation of an order for laboratory equipment from the same company; on that evening Hasan, Elomar, Sharrouf, Joud and Benbrika further discussed the preparation of the order; and on 2 June 2005 the order was placed.

20 The fact and contents of these conversations, involving various of the accused with the Melbourne men, was not, for present purposes, challenged. It was accepted that it might be both relevant and admissible. Mr Dalton, however submitted, that the identification of Benbrika and other members of the Melbourne group was of minimal probative value and that its probative value was clearly outweighed by its unfair prejudicial effect. So too with the geographical location of the Melbourne group. The prejudicial effect that was said to arise from the identification of those persons would be its capacity to establish in the jury’s mind that they were the unconvicted but charged members of a terrorist organisation in Melbourne. (Mr Dalton provided the Court with a volume of media reports concerning the Melbourne men and their trial. As I have indicated, the trial is underway at the present time, although it may conclude in June/July 2008.)

21 Mr Dalton made a subsidiary point in relation to the conversations surrounding the Haines’ discussions. In particular, he said that extremist statements made by Benbrika during those discussions were not in furtherance of the conspiracy and therefore not relevant. Alternatively, he argued that they should be excluded pursuant to section 137. Again, the main area of unfair prejudice was said to reside in the identification of Benbrika as a terrorist on trial albeit, at this stage, unconvicted.

22 In relation to the covert nature of Benbrika's travel to Sydney, Mr Dalton argued that there was no evidence that any of the accused knew of this situation. He argued that Benbrika may have had his own reasons to engage in "covert movements", quite separate from any consideration relating to the present offence. Indeed, he may have simply wished to avoid undue media attention.

23 In relation to the other overt acts, Mr Dalton said this: First, the documents found on Joud's computer, during the search of his premises, could not, he argued, be said to be in furtherance of the subject conspiracy. For that reason, they were not relevant and should be excluded. Secondly, the visit to Lucas Heights was not pressed by the Crown as being a visit in contemplation of a terrorist attack upon the nuclear reactor. Consequently, the reference to Lucas Heights should be excluded as it was, in any event, quite prejudicial. Counsel suggested that an agreement could be reached between the Crown and the accused as to an admission, or agreed state of facts, which would serve the purpose of the Crown case, without bringing in the damaging and unnecessary reference to Lucas Heights.

24 Another matter referred to by Mr Dalton in the present context was the trip to Curranyalpa. Again, for present purposes, Mr Dalton accepted that the evidence had been held to be relevant to the Crown case. He insisted, however, that the identification of the three Melbourne men who attended, was not in any way relevant. If it were, they could simply be referred to in some way that would not identify them as persons on trial in Victoria for terrorist offences.

25 The final matter addressed in oral submissions related to the additional overt acts identified by the Crown in its written submissions. Here, the submission was there was no real link at all between the activities of the accused in October/November 2005 and the material found at Mr Joud's premises in September 2004. If there were held to be such a link, again counsel suggested that the identity of the Melbourne men should not be disclosed to the jury.

Annexure 2 Arguments

26 Mr Dalton made a series of very detailed submissions regarding the listening device material and the telephone intercepts. Generally his point was that the matters identified in annexure 2 were not acts in furtherance of the alleged conspiracy. For that reason, he argued that they were not relevant as to the existence or scope of the conspiracy. Nor were they admissible pursuant to the co-conspirators' rules. Again, in a general way, Mr Dalton submitted that the only relevance of the statements in some of the conversations was as to the possible state of mind of the individual speaking, or perhaps listening to the conversation.

27 Secondly, in relation to annexure 2 matters, Mr Dalton submitted that any discussions between Benbrika and Sharrouf should be excluded altogether. This was because it might be safely assumed that Sharrouf would not be tried jointly with the other accused because of his mental condition.

28 In the alternative, Mr Dalton again submitted that, were any of the conversations to be admitted, they should be the subject of an admission or agreed statement which would permit the Crown the benefit of the minimal probative value of the evidence, but avoiding the prejudicial effect of the same by excluding the actual names and geographical location of the Melbourne group.

Ms Yehia's submissions

29 Ms Yehia provided written and oral submissions on behalf of her client, Hasan. Generally, Ms Yehia took up a similar position to Mr Dalton in relation to those matters that might be described as relating to the overt acts, for example, the Haines order and the Curranyalpa camp. Ms Yehia, however, made a number of discrete points about the annexure 2 material in Exhibits “A”, “B” and “C” on the voir dire (the listening device material, telephone intercept material and the material seized from Joud's computer).

30 Ms Yehia's starting point was a table or chart, which had been prepared by her team. The object of this chart was to demonstrate how many of the conversations were between Mr Sharrouf and Melbourne people; and how few there were between her client (or for that matter any of the other accused) and the Melbourne people. For example, the telephone intercepts reveal that out of 116 calls, 98 fell into the category of conversations between Mr Sharrouf and one or other of the Melbourne people. Only 11 of the 116 calls were between one or other of the Sydney men and one or other of the Melbourne people. In fact, there were a couple of calls that were only between the Melbourne people themselves and did not involve the Sydney accused at all.

31 Against the background of this analysis, Ms Yehia made a number of discrete points. First, counsel cautioned that, although the Crown suggested that the material would show the Melbourne men providing the Sydney accused with extremist and instructional material, this was not necessarily the case. In particular, counsel argued that there was no real identification of the videos and other material that were referred to in the intercepts. Simply because a video or book might be of a religious nature, did not mean that it was extremist, that is, material that promotes or encourages violent acts. There was, for example, reference to a video movie "The Prophet's Life". There were also discussions about the life story of Umar al-Khattab, a caliph who reigned in the year 634 to 644.

32 Secondly, Ms Yehia challenged whether it was accurate to say that the conversations disclosed Benbrika being used as a source of advice or inspiration to the Sydney accused. Counsel argued that a close inspection of the contents of the calls revealed the conversations to be instances of Mr Sharrouf seeking advice from Mr Benbrika. True it was advice of a religious type, but it was personal to Mr Sharrouf's situation. Thirdly, Ms Yehia challenged whether it could be said that instructional material was passed from the Melbourne men to the Sydney group. Apart from the Joud material, about which there was no evidence it was ever seen by the Sydney men, there was no other evidence of instructional material being provided or exchanged.

33 The final discrete point made by Ms Yehia was that the covert nature of Benbrika's trips to Sydney might also be explained by the fact that the trips were organised by Atik. There is material that shows that he was engaged in the theft of personal identities and also involved in credit card fraud on quite a large scale.

34 Overall, Ms Yehia highlighted the fact that her client had little to do with these conversations, especially when they were viewed in their entirety. Counsel submitted that all of this material under present discussion failed to provide the type of background that would explain or illuminate the overt acts relied on by the Crown. The most that they showed, if they showed anything at all, was something as to the state of mind of Mr Sharrouf on occasions. There was nothing, for example, to show that Mr Hasan had adopted the "maximum damage" outburst by Benbrika in February 2005. In her concluding submissions, Ms Yehia adopted Mr Dalton's submission concerning s 137 of the Evidence Act. More broadly, however, she submitted that the intercepts really showed Mr Sharrouf acting on his own in relation to a separate and distinct relationship he had with the people from Melbourne.

Mr Buscombe's submission

35 Mr Buscombe made a brief submission. It was to the effect that no inference at all could be drawn from the fact that there were certain activities engaged in by his client, Mr Baladjam, and Mr Mulahalilovic in early November 2005, which could, in reality, be related to the material seized from Mr Joud's premises. Counsel highlighted the fact that Mr Joud is not said to be a member of the Sydney conspiracy. Secondly, the only contact between Mr Joud and any of the alleged Sydney group, prior to 17 September 2004 when the seizure occurred, was a telephone call at 10.51am on 10 September 2004. It was a call, which involved Mr Atik, Mr Sharrouf and Mr Joud. It was not a call that discussed the exchange of anything, nor did it relate to the provision of any material. It was, counsel said, a completely innocuous call. Thirdly, Mr Buscombe pointed to the fact that the material seized from Mr Joud was never returned to him.

36 How then, counsel asked, could it be inferred that when Mr Baladjam and Mr Mulahalilovic attempted to obtain certain materials in early November 2005, they were doing so using information that had been supplied by Mr Joud? Counsel argued that it was simply impossible to show a relevant connection between the two events, especially as they occurred about 14 months apart.

Resolution of the issues

Preliminary argument

37 The oral submissions made by Mr Dalton on 5 and 7 May 2004 threw up a preliminary point for decision. At the time the written submissions were filed, it seemed to be common ground between the parties that certain well-established principles of admissibility would apply to and influence the rulings that I would be required to make in this decision. A particular statement of those principles had appeared in my earlier judgment R v Baladjam & Ors [No 11], unreported, 16 April 2008. The particular passages, especially relevant to this preliminary argument, appear in that decision at paragraphs 24 to 29. I shall set them out again in this decision.

“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 . (emphasis added).
(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.
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.
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.
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.”
The Court then likened the situation and justified the situation of that rule to an analogy of people being partners in crime.
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 must be determined, this being a matter for the trial judge. The discussion 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.”

38 During the oral presentation of his argument, Mr Dalton, in the politest of terms, pointed out a suggested qualification to these statements of principle, derived as they were from established authority. In essence, Mr Dalton took issue with a proposition inherent in the statement appearing in para 24 (b) above:

“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."

39 This inherent proposition had been taken up by the Crown in its written submissions. It had argued, in relation to the Melbourne material generally, that "the evidence is admissible against all accused to prove the existence and nature of the conspiracy, and some aspects of the evidence are admissible to prove the participation of the accused in the conspiracy". I have earlier set out the Crown submission in full.

40 Mr Dalton's qualification was simply this: Counsel argued that evidence could not be admitted against the accused generally to prove the existence and nature of the conspiracy unless that evidence was itself evidence of acts done in furtherance of the conspiracy, or, as Mr Dalton later put it, pursuant to the conspiracy. Senior counsel argued that this qualification arose from a consideration of the ALRC report (ALRC 26 vol 1 para 646 and para 755) and the terminology of ss 57(2) and 87(i)(c) of the Evidence Act 1995. Counsel argued in addition, that a close examination of established authority demonstrated that where evidence had been allowed in to prove the existence and nature of a conspiracy, it was generally in fact evidence of acts done in furtherance of the conspiracy. After the conclusion of the hearing on 7 May 2008, Mr Scragg sent me some further submissions, which contained references to recent authority, bearing, it was said, on the present preliminary point. As these submissions were sent in aid of Mr Dalton’s argument, I shall respond to them in this decision.

41 Mr Dalton sought to use the qualification he urged to exclude the evidence of the Sharrouf conversations with Benbrika. He argued that the evidence could only be relevant as to Sharrouf's state of mind. It was not material that was admissible, subject to the application of the co-conspirators' rule, against the other co-conspirators. Mr Buscombe said the conversations would not be admissible against the other men, even if Benbrika had said something about their state of mind during the conversations. It could only reflect on his state of mind. It could not reflect on theirs.

42 Broadly, Mr Dalton submitted that none of these matters could be admitted to show the existence and scope of the conspiracy unless the acts and words (and the fact of association itself) were in furtherance of the conspiracy. Because Benbrika (and the Melbourne men) were not alleged to be co-conspirators, it was impossible to say that either the association with them or the "acts" represented by the conversations could be in furtherance of the conspiracy.

Resolution of the preliminary issue

43 It will be necessary in due course to look carefully at the various conversations in Exhibits “A” and “B” to determine whether they are relevant and admissible. It will be also necessary to consider whether any of those conversations or remarks should be excluded pursuant to s 137. For the moment, I am merely examining Mr Dalton’s suggested qualification to the general statement of principle. Is his argument correct? Is the evidence of one co-accused doing an act (including verbal acts) relevant and admissible in proof of the existence and scope of an alleged conspiracy, in circumstances where the “act” is not one done in furtherance of the conspiracy? Mr Dalton's proposition is that, for it to be relevant, evidence as to the existence and scope of the conspiracy must be evidence of acts done in furtherance of the conspiracy, or pursuant to the conspiracy. I have come to the conclusion that Mr Dalton's qualification cannot be accepted as a correct statement of the law. In my opinion, it is contrary to authority and to established principle. Secondly, it is inconsistent with the provisions of the Evidence Act, which, in general terms, reinforce the existing common law on this topic.

44 I shall turn first to established authority. Before doing so, it will be convenient to refer to the second edition of "The Law of Criminal Conspiracy" by Dr Peter Gillies 1990 chapter 13 at page 176:

“Conspiracy counts typically present difficulties of proof. Technically, of course, a conspiracy is a mere agreement for an unlawful purpose. The only way it could be proven by direct evidence, would be by the adducing of direct evidence of the acts by which the alleged conspirators formed their agreement. Typically, this will be impossible. Indeed, unless a conspiracy is transacted, in whole or in part, it is unlikely even to come to the attention of the police and the prosecuting authorities. Most conspiracies, which come to be indicted, have been transacted.
Just as the police come to know of the existence of a conspiracy through the commission of its overt acts, the prosecution will usually seek to determine the specific objects of the conspiracy and the identity of its participants and victims, and to prove its existence in these terms, very largely by reference to and proof of these overt acts. In practice, that is, the prosecution will invite the jury to infer the existence of the conspiracy, its terms and its participants, by reference to the overt acts done in its commission, subject to the prevailing standard of proof in criminal trials. This approach is entirely logical. If A and B jointly commit a series of cognate crimes, it may readily be inferred that they agreed upon the commission of these offences. In the words of the Canadian Supreme Court in Paradis v R (1934) 61 CCC 184:
'No doubt the agreement...is the gist of the offence (i.e. conspiracy), but only in very rare cases will it be possible to prove it by direct evidence. Ordinarily the evidence must proceed by steps. The actual agreement must be gathered from "several isolated doings" having possibly little or no value taken by themselves, but the bearing of which one upon the other must be interpreted; and the cumulative effect, properly estimated in the light of all the surrounding circumstances, may raise a presumption of concerted purpose entitling the jury to find the existence of the unlawful agreement.'
The High Court commented in similar terms in its recent decision in Ahern v R (1988) 165 CLR at 92."

45 Dr Gillies points out (at page 177) that Ahern was, at the time his book was published, the leading Australian case dealing with the proof of conspiracy. (it may properly be still so regarded at the present time).

46 At page 92 of Ahern, the Court said:

“An appropriate starting point from which to consider the use which might be made of the acts and declarations of one co-conspirator against another is the rule of thumb referred to in Tripodi v The Queen (1961) 104 CLR 1 and 7. There it was said to be an 'empirical' but practical and convenient test; that acts and declarations done or made outside the presence of an accused are not admissible against him. Practical and convenient though that test might be, it can be no more than a rule of thumb, because it is clear that it has a limited application. It represents an attempt to state, in practical terms, the effect of the hearsay rule although, of course, acts (other than certain acts of communication) cannot of themselves constitute hearsay and, strictly speaking, lie outside the rule. However, acts may contain an implied assertion on the part of the actor, which makes it appropriate to treat evidence of those acts for some purposes as the equivalent of hearsay. A conspirator may, in the absence of another person alleged to be a co-conspirator, say or do something carrying with it the implication that the other person is involved. The statement or the act may be admissible in evidence to prove the fact of a conspiracy and, by way of admission, the participation of the maker of the statement or the actor in that conspiracy. But evidence of neither the statement nor the act should, except in the circumstances which we shall elaborate presently, be admitted against the other person to prove his participation, because it would for this purpose be hearsay or the equivalent of hearsay."

47 Mr Dalton placed particular reliance upon these passages. The Court however, continued (page 93):

“In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise, which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others, provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule...
Thus it was said in Tripodi (at page 6) that proof of the crime of 'conspiracy' may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment."

48 And later, at page 94, the Court said:

“However, it is not in all cases that evidence of the separate acts of the alleged conspirators will prove both the fact of combination and their participation. Of course, if the evidence fails to prove a combination at all, then that is an end of the matter. But if it proves a combination, although not the participation of an individual alleged to be a conspirator, then the question arises whether there are circumstances in which evidence of the acts and declarations of other participants, outside the presence of the individual, may be led against him, not as separate facts from which, when combined with other facts an inference of combination may be drawn, but as evidence of his own participation. Evidence of the acts or declarations of others led for this purpose will be led to prove the truth of the assertion or implied assertion contained in those acts or declarations. It would be excluded as hearsay or its equivalent, were it not admissible upon some other basis. 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."

49 The Court then went on to consider the degree or standard of proof of the evidence from another source which is required before the admission of the evidence against the absent conspirator; and whether it was for the trial Judge or the jury to decide whether proof to a required standard existed.

50 It will be seen, however, from the analysis conducted by the High Court, that the Court envisaged that evidence relevant to the existence and scope of the conspiracy might be a combination of circumstantial evidence not necessarily represented by acts done in furtherance of the conspiracy. It is true that the example given by the Court (persons engaged in various aspects of a bank robbery) were acts and declarations of participation in the venture. But in my opinion, the Court also made it clear that “acts or utterance” from which the fact of combination might be inferred, were not restricted to acts done in furtherance of the conspiracy.

51 This aspect of the relevant principles was examined extensively by the New South Wales Court of Criminal Appeal in two decisions given in 1992. The first of these was R v Masters, Richards and Wunderlich. Two of the three accused were alleged by the Crown to have been recruited to join an existing conspiracy, of which the third accused was already a member. Evidence was led, over objection, of three conversations between the third accused and another of the existing members of the conspiracy. Two of the conversations took place before the other two accused were recruited. The third conversation took place after recruitment. At page 460G the Court said:

“In conspiracy cases, the Crown must establish both the existence of the conspiracy and the participation of each particular accused in that conspiracy; there is a clear distinction to be made in relation to the admissibility of evidence to establish each of those two issues: Ahern v the Queen (1988) 165 CLR 87 at 93. That distinction becomes of special importance where the conspiracy is alleged to have been between the accused and persons not standing trial with them.
In order to establish the existence of the conspiracy, evidence is admissible of acts done or statements made by persons other than the particular accused even if he were not present - not (so far as the statements are concerned) to prove the truth of what was said, but in order to establish from the fact that the acts were done or the statements were made, the inference that the agreement which constituted the conspiracy charged had been entered into...that evidence is direct evidence, not hearsay ( Ahern v The Queen at 93); and it is admissible for that purpose even if the acts were done or the statements were made before the particular accused joined or became a participant in that conspiracy, for it does not depend in any way upon any acknowledgment or acceptance of the truth by the accused of the statements so made.
In order to establish that the particular accused participated in that conspiracy, there must first be reasonable evidence of that participation - that is, evidence independent of those acts and statements by other persons - which is admissible in the ordinary way against that accused: Ahern v The Queen (at 100). Once the judge has decided that there is such reasonable evidence in the case against that accused...the acts and statements by other persons in the conspiracy will become admissible against that accused, not only as establishing the existence of the conspiracy, but also, if they were done or made in furtherance of the conspiracy, as establishing his participation in it: Tripodi v The Queen (1961) 104 CLR 1 at 67; Ahern v The Queen at 100, 103; R v Davidovic (1990) 51 A Crim R 197 at 201-202.
It has not always been made clear in the cases just what constitutes an act done or a statement made 'In furtherance of the conspiracy'. In Tripodi v The Queen (at 7), the distinction was drawn between such actions and statements and something said which is no more than a narrative statement or account of some event, which has already taken place. Statements made in furtherance of the conspiracy, it was said, will usually be 'Directions, instructions or arrangements or...utterances accompanying acts'.
The expression itself - 'made in furtherance of the conspiracy' - suggests to us that a distinction should also be drawn between those acts or statements which form the conspiracy itself (that is, the acts or statements by which the agreement was made) and those which are done or made subsequently in furtherance of, or in carrying out, that conspiracy once the agreement had been made. The reference in Tripodi to 'arrangements' was (we believe) intended to be arrangements made in order to carry out the conspiracy, not to the formation of the conspiracy itself. Such a distinction is not one, which will always be easy to make. It is certainly rare that there is direct evidence of the Acts or statements which themselves form the conspiracy.”

52 In relation to statements made in furtherance of the conspiracy before the particular accused participated in the conspiracy, the Court held they would not be admissible against the accused who had subsequently joined the conspiracy as evidence of the truth of those statements, including as to his subsequent participation in that conspiracy. Such statements, the Court said, would become admissible against C as evidence from which the existence of the conspiracy may be inferred. For that reason, it would be necessary for the trial Judge in such a case to instruct the jury carefully upon the limited purpose for which the evidence was admissible (463A to C). The Court continued:

“Applying that view of the law to the facts of this case, it is clear that the first and second of the three conversations in issue (which took place before there is any suggestion in the evidence that the appellants had participated in the rip-off conspiracy) were not admissible against them as having been made by co-conspirators in the furtherance of the conspiracy, as the Judge told the jury in the directions to which we have already referred.
But that circumstance did not make those two conversations inadmissible. We are satisfied that each of them was admissible in order to establish the existence of the rip-off conspiracy itself. No question of hearsay arose. The conversations were original evidence of the existence of that conspiracy. In the first conversation, Richards agreed with Morrison to take part in the conspiracy and the subject matter of that conspiracy was identified. In the second conversation, it was agreed between the existing conspirators that Richards would recruit others to assist in that conspiracy. That conversation enlarged the scope of the conspiracy. No question therefore arose as to the application of the 'co-conspirator rule' in relation to these two conversations. Their admissibility did not depend in any way upon whether they took place in furtherance of the conspiracy. They became admissible against Masters and Wunderlich as to the existence of the conspiracy which they had joined, if there were reasonable evidence of their subsequent participation in it...
In our view, the remainder of the summing-up made it clear that those two conversations went only to establish the existence of the conspiracy which these two appellants were alleged to have subsequently joined."

53 The Court went on to consider the third conversation. This was found to be admissible because it constituted statements by the co-conspirators related to the carrying out or the furtherance of the conspiracy already established by the first and second conversations. It thus was enlivened by the co-conspirators' rule.

54 Now, it is true that in R v Masters, the first two conversations went directly to prove the existence of the alleged conspiracy. They were not only relevant to that issue, but proved the existence of the conspiracy. But circumstantial evidence relevant to the existence of a conspiracy may not be so direct. It may include many circumstantial facts, none of which in themselves will prove the existence of the conspiracy but, which, when examined with the evidence as a whole, will reveal the existence of the agreement relied upon by the Crown. This multitude of circumstantial facts may include acts done in furtherance of the conspiracy and facts which do not constitute acts done in furtherance of the conspiracy. Many of the facts, when examined in totality, will point not only to the existence of a conspiracy, but to the nature of that conspiracy. Again, some of those acts may be acts done in furtherance of the conspiracy. Others will not be of that character. Further, circumstantial evidence of this kind may contain hearsay statements or involve implied hearsay assertions. That will not prevent its admission into evidence in proof of the existence and scope of the agreement, as the authorities make clear. But, again, much of the circumstantial evidence may not be hearsay at all. It may make no reference to the other conspirators. It will be admissible against all the conspirators, however, in the sense that it may be considered, along with the whole of the evidence, not to prove the participation of the other conspirators, but to prove that a conspiracy existed and to identify the subject matter.

55 In R v Chai (1992) 27 NSWLR 153, the principal judgment was given by Badgery-Parker J, with whom Hunt CJ at CL and Allen J agreed) said at page 187: -

“It appears to me abundantly clear that the Judge, having reached a conclusion that there is reasonable independent evidence of the accused's participation, and having told the jury that the issue is whether the Crown has proved beyond reasonable doubt that the accused was a participant in the conspiracy charged, should simply direct the jury's attention to the evidence available to them in considering that matter, which evidence would consist, upon the hypothesis now made, of the evidence admitted directly as evidence of the acts and declarations of the accused himself (which may itself be direct evidence or circumstantial evidence) together with such part of the evidence of the acts and declarations of co-conspirators as expressly or impliedly assert the participation of the accused in the conspiracy. He would also, of course, draw to the jury's attention as evidence going to show the existence of the conspiracy as distinct from the accused's participation therein, the evidence of the acts and declarations of the co-conspirators which, as explained in Ahern, permit an inference to be drawn of the existence of a conspiracy with no infringement of the hearsay rule .
If, on the other hand, the trial Judge came to the conclusion that there was no reasonable independent evidence of the accused's participation, he would direct the jury that while they might refer to the evidence of the acts and declarations of the co-conspirators in the absence of the accused as forming part of a network of facts from which in accordance with ordinary principles of circumstantial evidence they might draw an inference of the existence of a conspiracy , they must put out of their minds such part of the evidence as might assert or impliedly assert the accused's participation when they came to consider whether the Crown had proved beyond reasonable doubt the accused's participation. It may of course well be the case that if, in the view of the trial Judge, that evidence was not available because there was not otherwise reasonable independent evidence of the accused's participation, he would in any event direct the acquittal of the accused." (underlining added).

56 And later, at 193 (B-D), dealing with an associated ground of appeal, his Honour said:

“This court has discussed the relevant principles in R v Masters . A distinction is to be drawn between acts or words of co-conspirators, [] the doing or uttering of which provide circumstantial evidence of the existence of a conspiracy and of its nature; and acts or words of co-conspirators which expressly or impliedly assert the participation of the accused in the conspiracy. As to the former, they are admissible against an accused person whether they took place before or after a time as to which there is evidence available to show his participation. As to the latter, they would be excluded by reason of the hearsay rule, unless rendered admissible by virtue of the co-conspirators' rule.”

57 The associated ground of appeal was that the trial judge had been in error in leaving to the jury conversations and acts of the co-conspirators which occurred prior to the appellant being appointed as a local buyer, and hence as a member of the conspiracy.

· Telephone call 13 October 2005 at 6.13pm. Sharrouf to Benbrika re religious matters - relevant.

· Telephone call 25 October 2005 at 12.32pm. Re religious matters - relevant.

· Telephone call 26 October 2005 at 11.16pm. Sharrouf to Benbrika re religious matters - relevant.

· Telephone call 2 November 2005 at 8.25pm. Jamal to Benbrika re women (religious discussion) - relevant.

(I have concluded that this conversation should not be excluded under s 137. It will be sufficient, if Mr Scragg requires it, than an appropriate direction be given to the jury to avoid misuse and to dispel irrelevant prejudice).

The 7.30 Report

170 On 4 August 2005, Kerry O'Brien introduced the ABC's 7.30 Report. The initial commentary was:

“As Australians struggle to understand the threat from Islamic militants, we are told they are living amongst us. One of the men recently targeted by ASIO here has broken his silence. Algerian-born Melbourne man Abdul Nacer Benbrika, who is also known as Abu Bakr, says that recent ASIO raids on his home and the banning of his passport earlier this year are unjust...”

171 The program broadcast several portions of an unedited interview with Benbrika. At one stage, when asked about other religions, he said:

“I am telling you that my religion does not tolerate other religion, it doesn't tolerate. The only one law which needs to spread can be here or anywhere else has to be Islam."

172 Later, when speaking of Osama bin Laden, Benbrika says:

“Osama bin Laden, he's a great man. Osama bin Laden was a great man before 11 September which they said he did it, and until now nobody knows who did it."

173 And later again he was asked whether he should tell his students that they should not engage in violence, that they should not go and train, Benbrika said:

“If I do this, it means I am betraying my religion...this is a big problem. There are two laws, there is an Australian law, there is an Islamic law."

174 Finally, Benbrika said:

“According to my religion, jihad is a part of my religion and what you have to understand that anyone who fight for the sake of Allah, the first, when he dies, the first drop of blood that comes from him out, all his sins would be forgiven."

175 The Crown originally stated that it wanted to tender the whole of both the edited and unedited version of the Benbrika interview. Consistently with my general analysis of the law and my understanding of the Crown case, the statements of Benbrika, in my opinion, are both relevant and admissible. The jury will be entitled to take into account the extremist views expressed by Benbrika together with the whole of the evidence, in assessing the activities of the individual conspirators. These activities extend to all the overt acts, including the possession of extremist material by each of the accused. The jury will be entitled to take the 7.30 Report evidence into account because of the special relationship between Benbrika and a number of the Sydney men, if they find the relationship is one of spiritual guidance and inspiration. They may do so because of the particular relationship between the Melbourne men and the Sydney group, if they find a mutuality of sharing of Muslim literature, including fundamentalist religious literature; and if they find the facilitation and participation by Joud and others in the Haines order, Curranyalpa and other of the overt acts alleged by the Crown.

176 The relationship and the views expressed by Benbrika are, however, but part of the Crown circumstantial case. The evidence concerning those expressions repeated on The 7.30 Report may, subject to the caveats I have mentioned, be brought to bear by the jury, together with other material, on the activities of the accused in assessing whether the Crown has made out its case as to the existence and scope of the conspiracy. On this basis, the evidence is admissible against all the accused.

177 The evidence may have a wider use in due course, but, for the moment, Benbrika's views are relevant at least in the way I have indicated. His statements on The 7.30 Report, while they may tell us a great deal about his attitudes, are not admissions by the accused. They are not hearsay evidence, nor are they to be used in a hearsay fashion. They are not tendency or propensity evidence, and are not to be used as if they were. There will plainly be a need for directions to make sure that the evidence is used in the appropriate manner. I would expect, as always, a significant degree of assistance from, and cooperation between, counsel in relation to the formulation of appropriate directions.

178 It remains only to address a number of the arguments raised by counsel in relation to The 7.30 Report. These arguments neatly fell into two categories. The first argued that the evidence was not admissible at all. The second sought its exclusion under s 137.

179 One of the arguments advanced by Mr Dalton drew on his argument that evidence of this kind might be regarded, in some way, as an admission by his client and therefore might be used by the jury in a hearsay fashion. As I have said, I do not consider that the evidence is sought to be tendered as an admission by any of the accused, even by those who may have seen the program or the video made of the program. It is trite to say that many people saw the program. Indeed, we all saw the program in Court when it was shown on the screens. It could not be said that, merely by watching the program, the viewers were admitting or representing agreement with Benbrika's statements. Some people may have been in agreement with those views. Others would have regarded them as repulsive. But they are not necessarily admissions by those of the accused who may have seen them. Nor are they tendered as such, at least so far as I understand the Crown case.

180 In the same way, they are not relevant to the case of only the accused who did see the program. Nor, for that reason, is it incumbent upon the Crown to prove that each individual accused saw the program and agreed with the views expressed by Benbrika. Its relevance arises out of the relationship I have described. Benbrika's views are relevant only because of the relationship, and those views are relevant, for present purposes, only as to the existence and scope of the conspiracy. In that way, they are admissible against all the accused.

181 Mr Scragg put Mr Waterstreet's argument in a nutshell. He suggested that the Crown wanted the jury to accept that, for example, Jamal adopted Benbrika's extremist views "simply by reason of the association". This is obviously not the way in which the Crown suggests the evidence is relevant. Indeed, as I have said, it would be appropriate to give a direction to make sure that the evidence is not used in that way. Similarly, the Crown case is not that every time Benbrika met any of the accused, he “exploded” into an outburst of extremist propositions. That is not the Crown case at all, as I have explained.

182 Mr Buscombe argued that the “demeanour” of Benbrika on the ABC program was not relevant. Rather, if the listening device and telephone intercepts went into evidence, it was his demeanour during those conversations that would be relevant. Mr Buscombe's submission, however, oversimplifies the statement made by the Crown. I understood the Crown to be suggesting that the jury are entitled to see Benbrika express the views he did, so as to form their own opinion about the seriousness with which those views were held. In that regard, I think the Crown submission is correct.

183 Ms Yehia argued that the introduction to the program and the comments about Benbrika should not form part of the material to go before the jury. The Crown accepted that those surrounding circumstances were not relevant and that only the views of Benbrika should be placed before the jury.

184 The final matter relates to s 137 of the Evidence Act. Should the name of Benbrika be cloaked or made the subject of a pseudonym for the purpose of the viewing of this material? I have touched upon this in an earlier part of this decision. I will not repeat those remarks. I accept that the Crown's suggestion that Benbrika be known as "Abu Bakr" may be sufficient. On the other hand, depending on the timing of the commencement of the present trial, it may be necessary to consider a more obscure pseudonym. While I am generally sympathetic to the defence position on this point, I continue to maintain that a jury will pay heed to and respect a direction given by a Judge that the trial is to be determined by reference only to the evidence given in the courtroom, and is not to be influenced by outside publicity, whether relating to this trial or any other trial.

185 For those reasons I propose, in general terms, to allow the Melbourne material

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