Regina (C'Wealth) v Baladjam [No 38]

[2008] NSWSC 1458

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 38] [2008] NSWSC 1458
HEARING DATE(S):	4/08/08; 5/08/08
JUDGMENT DATE :	26 August 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Order 1 in Notice of Motion dated 4 June 2008 made. Secondly, order that ASIO be excused from producing the documents referred to in each of the five categories set out in the subpoena and call of 13 May 2008.
CATCHWORDS:	CRIMINAL LAW - Conspiracy charge - principles relevant to proof of a criminal conspiracy - The nature of evidence limited as to the existence and scope of conspiracy - Evidence Act 1995 - Whether s 87(1)(c) of Evidence Act substantially alters the common law position - Evidence Act - Scope of admission - Tender of circumstantial evidence for a non hearsay purpose - Admissions with authority.
LEGISLATION CITED:	Evidence Act 1995 Crimes Act
CASES CITED:	Ahern v The Queen (1988) 165 CLR 87 Guimond v R (1979) 44 CCC (2d) 181 R v Baladjam [No 4] 18 March 2008 at [16] R v Baladjam [No 19] 28 May 2008 R v Baladjam [No 28] 24 June 208 at paras 41 and 60 R v Dinh [2000] NSWCCA 536 R v Horton; R v Esposito 45 NSWLR 442 (1998) A Crim R 306 R v Macraild CCA, unreported, 18 December 1997 - BC 9707215 R v Masters, Richards & Wunderlich (1992) 26 NSWLR R v Khazaal per Latham J 16 July 2008 R v Saleam (No 1) (1989) 16 NSWLR 14 at 18(C) R v Saleam (No 2) (1999) NSWCCA 86 at (11) Williams v Minister for Justice [2007] 239 ALR 689
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 38] 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:	R Maidment SC; G. Bellew SC; C. Donnell; Ms S McNaughton - Crown Mr N Williams SC - ASIO 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; - Accused Touma
SOLICITORS:	Commonwealth DPP Australian Government Solicitors 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: TUESDAY 26 August 2008

2007/2397001 - Regina v Omar BALADJAM [No 38]
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 - Principles relevant to proof of a conspiracy charge – evidence – co-conspirators rule – evidence as to scope and existence of conspiracy – hearsay rule – s 87(1)(c) of Evidence Act 1995 admissions with authority – s 81 of Evidence Act 1995 – admissions generally

1 HIS HONOUR: On 28 May 2008 I gave a preliminary decision (R v Baladjam [No 19] in relation to the defence application to exclude "Melbourne evidence"). This was an application that had been brought principally by Mr Dalton SC on behalf of Mr Elomar, although it was supported by Ms Yehia, Mr Buscombe and Mr Waterstreet on behalf of their clients. Overall, it was supported by all accused.

2 In the ultimate, I allowed much of the Melbourne evidence, although I considered that, at trial, pseudonyms might be used to avoid prejudice and directions might be given to limit the use of certain aspects of the evidence where that course was warranted.

3 During the course of the application, there had been an important preliminary argument raised by Mr Dalton. Senior counsel argued that evidence of a statement or act by one person could not be admitted against the accused generally to prove the existence and nature of the conspiracy unless that evidence was itself evidence of a statement or act done pursuant to the conspiracy, or at least in connection with it. Mr Dalton had argued that this conclusion emerged from a consideration of ss 57(2) and 76(1)(c) of the Evidence Act 1995. A number of the conversations scrutinised for that purpose of the argument involved statements by one Benbrika, a Melbourne man, who was not alleged to be a co-conspirator in relation to the conspiracy charged against the present defendants.

4 As my judgment makes clear, I was unable to agree with the submissions advanced by Mr Dalton in relation to his preliminary point. It will be helpful to reproduce in this decision some parts of my earlier decision. I set out below paras 107 to 114 of that decision.

5 Paragraphs 107-114 of R v Baladjam [No 19]:

“The correct starting point is to examine the evidence to determine whether, if it were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. The test of relevance will extend not only to the elements of the offence in the light of the plea but to facts that are themselves relevant to the facts in issue. ( Smith v The Queen [2001] 206 CLR 650 at (6) per Gleeson CJ, Gaudron, Gummow and Hayne JJ). This test is often best approached by seeking to identify the purpose for which the tender is sought by the Crown, or the basis on which the Crown says it will advance the Crown case. The Crown wishes to tender evidence of the conversation as relevant to prove the existence and nature of the conspiracy, and as relevant to the accuseds’ intention in undertaking activities in furtherance of the conspiracy. The Crown wishes to argue that these activities took place in the context of the accused generally receiving advice and inspiration from Benbrika, he being a person who supported and promoted violent jihad as part of his preachings in relation to the theology of Islam.
Further, the Crown argues that these activities were undertaken in the context where there was a sharing between Benbrika, and others who reflected his view, of religious material, excluding extremist material. Indeed, the Crown will endeavour to prove that, at least in one instance, there was a sharing of information contained in instructional material held by one of the Melbourne group. Importantly, part of the context, according to the Crown case, is that there is evidence of actual facilitation where some of the Melbourne group assisted the Sydney group in relation to attempts to obtain large quantities of laboratory equipment. Finally, the Crown case is that, if it be the defence position that the various actions alleged to be in furtherance of the conspiracy were actions taken on an innocent basis, the Melbourne evidence (including the conversation) is relevant to rebut this as a hypothesis consistent with innocence, and relevant to support the position contended for by the Crown.
Applying the Evidence Act test of relevance to the conversation, in the light of the manner in which the Crown will contend that the Melbourne evidence generally may be used in the trial, it will be seen that it is the relationship itself between Benbrika and the accused that brings about a situation where the conversation may properly be regarded as relevant. The relationship is one evidenced by the duration, frequency and content of the association between Benbrika and many of the accused on the other. It is that relationship, being one of religious and spiritual guidance, that makes relevant the fundamentalist attitudes expressed both publicly and privately by Benbrika. The relationship is one of spiritual guidance in connection with his views on the dictates of Islam. To Benbrika, jihad is a fundamental precept of his religion. This he makes clear in the interview in the 7.30 Report on the ABC in August 2005. He is an admirer and supported of Osama bin Laden. He does not tolerate other religions. Benbrika is what sections of the media have loosely described as “a fire brand cleric”. Tacitly, he appears to approve of the September 11 destruction of the Twin Towers and the loss of American civilian lives. He is reluctant to ascribe blame to Al-Quaeda, but if they were the perpetrators, their actions were justified.
It is clear that the relationship does not prove by itself the existence and scope of the alleged conspiracy. Nor does the conversation. The conversation, and indeed, the relationship, are but part of an overall circumstantial case that includes the actions of the Sydney accused themselves in ordering laboratory equipment, ammunition and other materials arguably connected with preparation for a terrorist act or acts. It includes as well their possession of extremist material supporting jihad. The nature of the association, in my opinion, is relevant as a circumstantial fact, in proof of the existence and scope of the conspiracy. The accused are men with strong religious views about their faith. They hold strong views about events relating to Muslims in the Middle East and elsewhere. They are disconcerted by the attention paid to them by police and other authorities. They look to Benbrika as a religious leader.
The conversation may also be relevant (although I make no decision at this stage) as part of an act done in furtherance of the conspiracy. The conversation, after all, occurred as part of a wider discussion, which included aspects of religious guidance in the context of Islamic history. It occurred in the context of references to Islamic history including military action, warfare and martyrdom. It included the discussions referrable to a plan to organise an order for the supply to the Sydney accused of a large volume of laboratory equipment. The ordering of the laboratory equipment is alleged by the Crown to be an overt act within the conspiracy. Indeed, the general relevance of evidence relating to that act (including discussion about it) is, subject to some arguments about exclusion under s 137, not seriously put in issue by the accused. Whether the conversation might be relevant in this further way, I shall put to one side. The application of the co-conspirator’s rule will normally be considered at the close of the Crown case.
I return, however, to the primary basis on which the evidence of the conversation is sought to be adduced by the Crown. It is, as I have said, in the context of the relationship between Benbrika and the Sydney accused. It is in the context of his providing spiritual guidance over an extended period of time. The fact that the spiritual guidance is, on a number of occasions, focused on guidance about religious matters that do not extend to the waging of jihad is beside the point. It is the nature of the relationship that makes the evidence of Benbrika’s public and private espousal of violent jihad relevant to the facts in issue, and especially to the existence and scope of the conspiracy.
The conversation is not an admission by Sharrouf, Hasan or anyone else present on the February occasion. In so far as the evidence might be capable of reflecting on the state of mind of Hasan and Sharrouf, it is not tendered at this stage as an admission against them or, for that matter, against any of the other men. As to the state of mind of Sharrouf and Hasan, it is no more than a piece of circumstantial evidence. Indeed, as presently minded, I would think that the admission of the evidence might properly be accompanied by a direction indicating that it is not to be relied upon as an admission and that it is not being tendered for any hearsay purpose. If s 60 of the Evidence Act requires that a limitation be imposed on the tender of the evidence, that can be achieved pursuant to s 136 of the Evidence Act . The question of directions, however, is essentially one for the future. I intend to indicate no more than that directions of the kinds I have in have mentioned (and others as well) may well be appropriate when further consideration is given to the issue.
For the moment, I am content to state that, in my opinion, the evidence is at least relevant as going to proof of the existence and scope of the alleged conspiracy in the way I have indicated. It needs to be borne in mind that the essential nature of the Crown case suggests that Benbrika, Joud (and perhaps others in Melbourne) were facilitators, in a general sense, of the objects of the Sydney conspiracy. One aspect of Benbrika’s position was to facilitate it especially by the provision of a wide range of spiritual guidance and inspiration. The Melbourne men provided material to the Sydney group and, at least in one instance, it is to be inferred, they provided or passed on instructional material or information (the Joud material) to them. The Crown case, as I have said, suggests that an appropriate inference may be drawn from Benbrika’s many communications with Sharrouf, his visits to Sydney, their visits to him, his giving of sermons and religious instructions (both publicly and privately) to them, that his extremist views were of value to the Sydney conspiracy. In this latter regard, the Crown case, in connection with the Melbourne men, likens the identified aspects of the Melbourne link to the extremist and instructional material found and seized from the Sydney men themselves. In that sense, it is material which points, at least, to the existence of the alleged conspiracy but particularly to its connection with violent extremism and violent jihad. The conversation presently under discussion fits into that category.”
Mr Dalton's present submissions

6 Essentially, Mr Dalton has made two submissions in the present application. These are:

(a) This Court ought to reconsider its analysis of legal principle in R v Baladjam [No 19] and, as a result, accept and apply the defence interpretation of the law (rejected in that judgment) to both the "Melbourne material" and to the conversations under challenge in the present application; or

(b) in the alternative, the Court should hold the conversations now under consideration in the present application should be distinguished from the "Melbourne material" on the basis that the "Melbourne material" was relevant to the existence and scope of the conspiracy because it related to the obtaining of spiritual guidance and inspiration. Further, a distinction might appropriately be made, in that the material in the present application generally falls within the description of an “admission” within the meaning of the Evidence Act 1995 ( R v Horton (1998) A Crim R 306).

7 Mr Dalton (and the other legal representatives) have gone to considerable trouble to prepare three large folders of evidence. The first is described as annexure 1 (Exhibit “A”). Generally, it contains a broad range of conversations involving one or more of the accused (and sometimes other persons). These are, generally speaking, taken from the Crown case statement. Annexure 2 (Exhibit “B”) is a large folder containing material generally not found in the Crown case statement, but reflecting the product of listening device material. The third folder, annexure 3 (Exhibit “C”) relates to computer content and other material allegedly found in the possession of the accused. It will be the subject of later separate submissions and does not require specific attention at this stage.

8 Ms Yehia for Mr Hasan provided the Court with an additional folder (Exhibit “D”). It contains product that the Crown propose to rely on at trial, although there is some overlapping between Mr Dalton's material and that contained in Exhibit “D”. Counsel for other accused have either provided me with similar material, or have indicated that, in due course, there will be applications to exclude particular pieces of evidence appearing in the folders or elsewhere in the Crown brief material.

9 As I understand it, it is the joint application of all counsel to support Mr Dalton's preliminary point argument, as modified and enlarged by his submissions on the present application. In addition, there will be arguments from individual counsel to suggest that particular conversations are not admissible, or that they should be excluded under s 137.

10 The purpose of this present decision is to identify Mr Dalton's overall preliminary point and to adjudicate upon its validity or otherwise. This will leave for future discussion or decision any individual arguments about particular conversations, both as to their admissibility and/or exclusion.

Mr Dalton's preliminary point - Identification of the Issue

11 It may be helpful if I set out at this point several of the actual conversations sought to be relied upon by the Crown at trial. Those conversations will, I think, give content to Mr Dalton's argument and to the Crown's response. Several illustrations will suffice to make the point. The first appears at paragraph 29 of the Crown case statement (CCS). On 24 October 2004 at 5.50pm, a conversation involving Moustafa Cheikho and another person was recorded on a listening device. At the time it appears they were watching videos or material on the Internet. There was speculation as to who was responsible for the atrocities of September 11, 2001. During this conversation, Moustafa Cheikho said:

“No, when they came, when they came and took my computer, guess what? It was a screen saver, the American flag, the Jewish flag with Twin Towers in the background being burnt.”

12 And later:

“ Male: What bomb is it?
MC: There's these American poofs man. ...it kills man when I see what they do to kids man.
Male: Shanker, you like this kind of stuff man?
MC: Come see this man. Come see this...remember this one there? They blew up a car and this was an American in it. They tied him up to the car and they drove around the whole of Falluja, and they kicking him and bashing him.”

13 And later:

“ MC: You know if they're training...and you die while you were training, you die a martyr.”

14 And later:

“ MC: God willing next week when they capture these Australians so they can chop their heads off.”

15 The Crown alleges that the accused Touma was present during this conversation.

16 On 20 November 2004 at 11.59am there was a telephone conversation between Moustafa Cheikho and another person during which George Bush and Condoleezza Rice were discussed. Moustafa Cheikho said, when told that Condoleezza Rice was in hospital:

“She's in hospital? God is the greatest...good, God willing they all die. God willing they don't man, God willing they'll die from the mujahideen. Just like that grab every single one of them, just like that they're killed with style.”

17 Another example relates to a telephone conversation on 1 April 2005. There was a telephone conversation between Khaled Sharrouf and Moustafa Cheikho. During this, the participants discussed burning CDs, which depicted "slaughtering" in Iraq. Later that day at 4.55pm, there was a telephone conversation between the two men during which Sharrouf warned Cheikho not to drive because "there are pigs outside, I saw them now".

18 A final example relates to a telephone conversation between Sharrouf and another person during which there was a discussion about a television program on terrorism. This happened on 21 October 2004 at 7.11pm. Sharrouf said:

“Let the people accept that we're this but we're doing it for a proper cause, you know.”

19 It will be seen that each of these examples involves a statement by one accused to another, or to another person. Mr Dalton accepted that these individual statements might be admissible against the particular person who uttered them as an admission. Provided that they were relevant, and not otherwise excluded, they might be brought into evidence in this way, but admissible only against the person who made the statement. Mr Dalton argued that the statements could not be admitted as evidence against the other accused as evidence going to the proof of the existence and scope of the conspiracy. Mr Dalton argued that, if the evidence were used in this way (as the Crown submitted it should be, and as my earlier judgment suggested it could be) that this would circumvent the scope of the hearsay rule and erode the protections otherwise afforded by the provisions of the Evidence Act.

20 Why is this so? Because, Mr Dalton argued, the statements do not answer the description in s 87(1)(c). This section is concerned with determining whether a previous representation made by a person may also be "taken to be an admission by a party". The Court is to admit the representation if it is reasonably open to find that the representation was made by the first person “in furtherance of a common purpose that the person had with the party, or one or more persons including the party”. (See my discussion in R v Baladjam [No 19] at paras 71 to 86.) The conversations could not, Mr Dalton said, be described in this way.

21 Mr Dalton's point is similar to that he argued in the earlier matter. It focuses, however, in a more precise fashion on two particular aspects. They are:

(a) the wide definition of "admission" and its component parts in the Evidence Act Dictionary; and

(b) the "protection” afforded to parties in a conspiracy case by virtue of the terms of s 87(1)(c). In particular, the protection is said to be a limitation against statements by one conspirator (admissions) being used as evidence of admissions by another, unless the statements be in furtherance of, or pursuant to the conspiracy.

22 As to the first aspect, the definition of "admission" and its components is contained in my earlier decision at paras 81 and 82. I will not repeat them here. Mr Dalton's point is, however, that an admission "is not confined to a confession" - the expression is wide enough to capture an out of court statement ("a previous representation") made by a defendant in a criminal proceeding where it is one that is adverse to that person's interest in the outcome of the proceedings (R v Horton; R v Esposito (1998) 45 NSWLR 442).

23 The first aspect, Mr Dalton argued, gave considerable illumination to the second. Thus, the “protection” afforded by s 87(1)(c) could be identified in the following way: Where a previous representation made by one person could reasonably be found to be made by that person "in furtherance of a common purpose" with a number of other persons, including the defendant, it could be admitted into evidence as an admission by that defendant. In terms of the section, it could be used, not only as an admission against the first person, if he were a party to the proceeding, but it could "also be taken to be an admission" by the other defendant.

24 But, Mr Dalton argued, the real thrust of s 87(1)(c), its true ambit of protection, lay in the proposition he next enunciated. Mr Dalton argued that, if the representation were not one done or uttered "in furtherance of the common purpose", it could not be admitted against the other defendant or defendants in the trial.

25 It may be helpful if I set out here the following paragraphs from Mr Dalton's written submission:

“17. Simply to assert evidence is being used to prove the existence and scope of a conspiracy cannot be used as a tool to circumvent the hearsay rules when obviously the line of reasoning involved in the use of that evidence demonstrates the representation is being used to achieve this end by seeking to prove the fact intended to be asserted in that statement by the maker.
18. In reality, when all pretext is peeled away, the evidence is really being sought to be used as an admission, firstly, against Sharrouf and then as an admission against the other alleged co-conspirators.”

26 (In these paragraphs, Mr Dalton was dealing with the final illustration I gave above, namely, the statement by Mr Sharrouf on 21 October 2004.)

27 The written submissions continue:

“Subject as said to consideration of s 137 the statement would appear available as exception to the hearsay rules by way of admission pursuant to s 81, given it is a previous representation made by a person who is a party, adverse to that person's interest in the outcome of the proceeding; adverse because it suggests Sharrouf is saying he and the others are deliberately involved in terrorist activities and they believe they are doing so for a legitimate purpose. This, it would seem, is available against Sharrouf to help prove the existence of the conspiracy, the participation of Sharrouf and others, and that they are involved with a deliberate intent for what they believe is a legitimate purpose consistent with the Crown case. For it thereafter to be admissible against the others, s 87(1)(c) must be satisfied . (My emphasis).”

28 Mr Dalton made two further points. First, even if the Crown purported to have the evidence admitted as limited simply to the existence and scope of the conspiracy, such statements would in any event be admissions (within the meaning of the Evidence Act) and accordingly could not be admitted against the co-accused except in accordance with s 87(1)(c). Since, in the main, such statements could not be said to be "in furtherance of a common purpose", they could not be admitted in terms of the relevant section. Secondly, Mr Dalton argued that the statements were not relevant as to the existence and scope of the conspiracy in any event. The mere expression of extremist views or sympathies would not show the existence and scope of the conspiracy. (This submission was by no means consistent with the written submission referred to in para 27 above). What in reality would be occurring, counsel argued, is that the evidence would be being used as a de facto admission against those present and, by the extension of their alleged association through the period charged, an admission against everyone else as to their like intent (paras 24 and 27 of the written submissions).

Crown response

29 In the course of its submissions, the Crown examined in detail, by way of illustration, a number of the of conversations set out in this decision. The first basis upon which each statement is to be led is that it is admissible, together with other evidence, as circumstantial evidence to prove the nature and scope of the conspiracy. In that regard, the Crown submitted the evidence was not tendered for a hearsay purpose and was admissible against all accused. The Crown accepted that, if ultimately the Crown were unable to prove the participation of individual defendants in the alleged conspiracy, the evidence would fall by the wayside, so far as that particular accused is concerned. Indeed, if the Crown could not satisfy the jury beyond reasonable doubt that the alleged conspiracy existed and was in place, the Crown case would fail. The Crown qualified its principal submission by suggesting that some of the statements may, in the ultimate, be admissible on a further basis, namely to prove the participation of all the accused in the conspiracy, that is, as representations made in furtherance of the conspiracy. The appropriate time for the determination of that question, however, would be at the conclusion of the Crown case.

30 Secondly, the Crown examined each statement as to whether, and on what basis, it would be admissible against the person who made the statement. For example, the statement by Moustafa Cheikho - "you know if they're training...and you die while you were training, you die a martyr". The Crown said that this statement would be admissible against Moustafa Cheikho, not to prove the truth of the statement, but as evidence of his state of mind. For that reason, the Crown submitted that the statement was not caught by the hearsay rule in s 59, it was precisely permitted by s 72 and, although it arguably might fall within the description of a previous representation, it was not tendered for a hearsay purpose, and was accordingly admissible, in any event, under s 60 of the Evidence Act.

31 The Crown took a second example, the reference by Moustafa Cheikho on 24 October 2004, to the description of an American who was tied up to a car and then driven around Falluja while being beaten and assaulted. Once again, the Crown submitted that this was both relevant and admissible as reflecting upon Moustafa Cheikho's state of mind. It was not intended as a hearsay statement to prove that the event occurred. It was simply tendered to show the approval of the speaker to the situation described in the evidence. It was relevant to an attitude or state of mind that was itself relevant to the proof of the ingredients of the offence, as against that accused. More precisely, it was relevant as a circumstantial fact going to Cheikho’s state of mind which, together with other evidence, would tend to demonstrate he had, when carrying out or being involved in overt acts pursuant to the conspiracy, the intention or intentions necessary to prove the offence against him.

32 Finally, the Crown referred to the illustration where Khaled Sharrouf had warned Moustafa Cheikho not to drive because "there are pigs outside, I saw them now". The Crown submitted that this was relevant, on the secondary basis, to show the state of mind of both Sharrouf and Cheikho in relation to the need to counter diligent surveillance by the authorities. It would not be tendered to show there were police outside, nor to show that Sharrouf had seen them. Rather, it would be tendered against Sharrouf and the other man simply to show his or their state of mind. As to the first basis of the tender, together with other evidence, it would be relevant as circumstantial evidence, and admissible against all conspirators because of its capacity to reflect upon the existence and scope of the conspiracy. It was capable of reflecting upon the existence of the conspiracy because, taken together with other evidence, it showed a need to be wary of surveillance by the authorities. It also had the capacity to reflect upon the scope of the conspiracy because counter-surveillance was, according to many aspects of the Crown case, a fundamental and integral part of the agreement between the nine men. (See R v Baladjam [No 4] at [16]).

33 Overall, the Crown submitted that the provisions of the Evidence Act relied upon by Mr Dalton did not, in any significant way, change the existing law. Further, they did not qualify or modify the Ahern principles. (Ahern v The Queen (1988) 165 CLR 87).

Resolution of the issues

34 In R v Baladjam [No 19], I set out and discussed at considerable length a number of the recent authorities in relation to the admission of evidence in a criminal conspiracy case. The leading principles were essentially derived from Ahern v The Queen. It may be helpful if I summarise the principles as follows:

1. 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.

2. The fact of the agreement to engage in a common enterprise can seldom be proved by direct evidence and must, in almost all cases, be proved as a matter of inference from other facts, that is to say, by circumstantial evidence.

3. 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.

4. If a combination be proved, there are then circumstances in which evidence of the acts and declaration of other participants, outside the presence of the individual, may be led against him, not of separate facts from which, when combined with other facts an inference of combination may be drawn, but as evidence of his own participation.

5. 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 declaration.

6. Led in this (second) way the evidence will not be excluded as hearsay. This is because of the co-conspirators' rule.

7. The co-conspirators' rule 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. The analogy is that of partnership.

35 These, then, are relevantly for present purposes, the Ahern principles. It was on the basis of those principles that the Court of Criminal Appeal in R v Masters, Richards and Wunderlich made its statements in 1992. I have set them out in full at paragraphs 51 to 53 of my earlier decision. The passage at page 460G of the decision,, however, bears repetition in relation to the present discussion. There, it will be recalled, 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.”

36 Before passing to a final evaluation of the preliminary point, I will briefly address the submission made by Mr Dalton concerning Horton's case. In that case the appellant Horton had been charged with murdering one Michael O'Hara Fitzgerald. The Crown's case was that Ms Horton had stabbed the deceased in the chest following a drunken disputation. A police officer attended the scene within minutes of the stabbing. He spoke to the victim, who was near death. The victim indicated that he had been stabbed by the appellant. The police officer then asked the appellant what had happened. She replied "he fell on the knife". The appellant was arrested and later charged. At trial the appellant gave evidence. She said she was a chronic alcoholic and she had been drinking heavily on the day, indeed the days, leading up to the death of the deceased. The thrust of her evidence was that she had no recall of events, and had been in any event unable to form a criminal intent, particularly in light of her intoxication through alcohol.

37 The trial judge had to determine whether to admit the appellant's statement "He fell on the knife" in response to the question "What happened?" The trial judge held that the answer given to Constable Evans was an "admission" within the meaning of s 424A of the Crimes Act. The problem was that, if it were properly categorised as an "admission" (equating to that expression as defined in the Evidence Act 1995,) it ought to have been excluded. This was, firstly, because the conversation had not been tape-recorded as required by the legislation. Secondly, and importantly, the appellant had not acknowledged in the course of an electronically recorded interview, following her arrest, that she had made an earlier admission in terms of the answer alleged to have been made at the scene of the stabbing.

38 The trial judge, however, had held that although an "admission" was involved, there was a reasonable excuse for the absence of any tape recording. He admitted the evidence, but did not limit its use under s 136 of the Evidence Act. The Court of Criminal Appeal held that if the statement were an "admission", the fact that there was a reasonable excuse for it not being taped in the first place would not have of itself permitted the tender of the evidence. This would have been because of the second procedural failure. This had the consequence that his Honour would have erred in law in admitting the evidence of the admission.

39 Against that background, Wood CJ at CL l, with whom Sully J and Ireland J agreed, held that the expression in the Crimes Act, in fact, equated to the definition in the Evidence Act. His Honour held that the broad definition of an "admission" in the Evidence Act included not only inculpatory, but extended to exculpatory statements that were relied upon as adverse to the defendant's interest. In the particular instance, the appellant's statement that "he fell on the knife" flew in the face of her statement that she was completely intoxicated, and was clearly a representation made that was adverse to her interests.

40 Mr Dalton SC (and in this regard he was supported by Mr Button SC) relied on Horton's case to argue that statements made by, for example, Moustafa Cheikho were previous representations "adverse to the interests of" Moustafa Cheikho. The Crown, however, had argued that the particular statements in the examples given were not tendered to prove the existence of any fact represented by the statements. Rather, they were simply statements evidencing a particular state of mind or intention. The Crown argued that, since the statements were not being tendered for a hearsay purpose on the first basis, and were not being tendered to prove anything other than the state of mind of the accused on the second basis, they did not constitute admissions for the purposes of the Evidence Act.

41 This is not an easy question to resolve. There are commentaries that highlight the continued uncertainty over the issue. At common law the position was that a statement made by a party, adverse to his or her interests, was admissible. If admitted, it was received in evidence as proof of the truth of the contents of the statement. It was then the function of the jury to decide whether it was an admission and to assess the weight to be given to it.

42 Section 81 of the Evidence Act makes an admission an exception to the hearsay and opinion rules. The Act defines an “admission” in the Dictionary. Both “representation” and “previous representation” are also defined. Are those definitions, however, to be read in the light of the hearsay rule, as expressed in s 59? The hearsay rule is itself expressed in quite narrow terms. It requires an answer to this question: is the representation tendered to prove the existence of a fact the person (party) intended (my emphasis) to assert? There is obviously a difference between the fact which the representing party intended to assert, and the inference as to that intention a tribunal fact would draw from the statement.

43 Horton’s case provides a good example of the conundrum. What did Ms Horton intend to assert as a fact when she said “He fell on the knife”. Arguably, it was not the fact that she was perfectly sober. That was an inference that the tribunal of fact might have drawn from the words she used, but that, as I say, is arguably a different matter. Viewed in that way, Ms Horton’s statement may not have been an admission within the meaning of s 81 of the Act. It might, more accurately, have been described as no more than an objective fact – the words she used – in proof of, or relevant to, her capacity to form an intent.

44 Two points in response may be made. First, the decision of the Court of Criminal Appeal in Horton’s case is binding on me. That decision determined that Ms Horton’s remarks were an admission, even though they were exculpatory, and should have been excluded. Secondly, it might be argued, perhaps faintly, that the language of s 59 ought not be imported into the definition of “admission” and “previous representation”. Fortunately, at least for the present, I do not have to resolve this rather difficult question. It may emerge again, however, because it is not entirely clear to me that the Crown has altogether abandoned the use of the evidence as an admission. It may well have done so, in the light of the submissions referred to at paras 29-32 of this decision. I would not, however, require the Crown to make a final election on this point until this decision (and others related to the same point) have been available for reflection and consideration.

45 The Crown’s real response to the point is that s 87(1)(c) does not, in any event, do the work attributed to it by Mr Dalton’s preliminary point. Mr Dalton also urged me not to dwell, as it were, over-long in the shadowy realms of academic conjecture. For the purposes of the argument, I will, for the moment, assume the statements under discussion here are capable of being described as “admissions”. If Mr Dalton’s argument succeeds, so be it. He will have successfully persuaded the Court to limit the admission of statements that are not “in furtherance of a common purpose”. (I should add that Mr Dalton’s argument was essentially “once an admission, always an admission”. In Horton’s case, it might be observed, Wood CJ at CL contemplated that, had the trial judge limited the evidence under s 136, it would not have retained this character). If Mr Dalton’s primary argument, as to the meaning of s 87(1)(c) is not successful, however, it will be simply academic as to whether the statements are or are not capable of being viewed as “admissions”. The Crown’s ultimate decision as to how to use the statements, if they are permitted, is a separate matter.

46 I have given careful thought both to Mr Dalton's original submissions and to the written and oral submissions he has made on the present application. This consideration has not led me to alter the conclusion expressed in my earlier decision. It is a fundamental aspect of Mr Dalton's argument, although he did not express it in these terms, that s 87(1)(c) has “obliterated” the legitimacy of proving the fact of a conspiratorial agreement by the use of circumstantial evidence not tendered for a hearsay purpose. In my opinion, there is nothing in s 87(1)(c) which warrants this construction being given to the legislation.

47 In general terms, s 87 of the Evidence Act is dealing with "admissions made with authority". It appears in that part of the legislation dealing with admissions. It is concerned to widen, or at least to make certain, the scope of the admissions section to make admissible admissions properly made by one person on behalf of another. For example, s 87(1)(a) deals with the situation where it is open to find that a person had actual authority to bind another by admission. Section 87(1)(b) takes, by way of further example, the position of an employee, and it furthers the common law by enabling an admission by that person to be available against his employer, where it is reasonably open to find that the representation was within the scope of the person's employment.

48 Section 87(1)(c) encompasses the criminal charge of conspiracy but it is not, by any means, confined to that situation. It embraces admissions in the context of civil proceedings where a lawful common purpose is involved. It extends, however, to a criminal case where an unlawful common purpose is involved. Even so, the section, however, does not address in its terms that specific problem in conspiracy cases where the fact of combination is itself an essential ingredient of offence. It does not impact upon the resolution of the specific problem in conspiracy cases, arising from the fact that combination is an ingredient of the offence. This is an important aspect of Ahern's case: in a conspiracy charge, there must be independent proof of the fact that a particular person is connected with the conspiracy, and the Court must be reasonably satisfied about that matter before allowing the act or statement to be admissible as an act in furtherance against the others.

49 As I have said, this added requirement in a criminal conspiracy case is not dealt with at specifically in s 87(1)(c) of the Evidence Act. Nor is it dealt with in any other provision of the legislation. In the same way, s 87(1)(c) simply does not concern itself with the issue of evidence admissible against all the alleged conspirators, being evidence of a circumstantial kind directed to the establishment of the existence and scope of the conspiracy. The principles relating to the admission of such evidence were dealt with by the High Court in Ahern's case at page 93 and are reflected in propositions 1, 2 and 3 set out above. The Evidence Act, of course, allows for the reception of evidence as provisionally relevant in s 57(1). But that section does not otherwise touch on the admissibility or otherwise of evidence going to the existence and scope of the conspiracy. Importantly, for present purposes, s 87(1)(c) does not, in its terms, concern itself with this aspect of the evidence in a conspiracy case by requiring that evidence of this kind must be in furtherance of the conspiracy. The section, in fact, has nothing to say as to the admissibility or otherwise of circumstantial evidence tendered for a non-hearsay purpose to show the existence and scope of the conspiracy. The proposition that such evidence is admissible against all the conspirators remains completely untouched by s 87(1)(c).

50 This is so for at least three reasons. Firstly, as I have indicated earlier, the section is dealing with "admissions" (verbal or otherwise) made by one person in circumstances where they will be “taken to be” an admission by a defendant or defendants in criminal proceedings. The fundamental control point is that, in one sense or another, it must be reasonably open to find that the admitting party had authority to make the admission on behalf of the defendant or defendants. In the context of the criminal law, this fits neatly and precisely into the basis of admissibility discussed by the High Court in Ahern at page 94, and known generally as the co-conspirators' rule. The section has nothing to do with, and has nothing to say as to, the admissibility or otherwise of circumstantial evidence tendered on a non-hearsay basis in proof of the existence and scope of the conspiracy. Secondly, there is nothing in the language of the section (or for that matter in the ALRC reports) that would justify a conclusion that Parliament intended to obliterate the well established principles going to the admission of evidence limited to the existence and scope of the conspiracy. Thirdly, as I indicated at para 85 of my earlier decision, the Court of Criminal Appeal, in a decision binding upon me, has held that s 87(1)(c) reproduces the existing common law relating to representations made by co-conspirators in furtherance of a common purpose. (R v Macraild Court of Criminal Appeal, 18 December 1997 – BC 9707215).

51 After my decision had been reserved, Mr Dalton sent me further submissions on the 6 August 2008. These are quite lengthy and makes reference to a number of decisions in Australia and elsewhere. Neither the submissions nor the authorities lead me to change my view of the relevant law in relation to the evidence under discussion. I do not propose to address these matters at length, but will confine my remarks to the following.

52 First, the Canadian case of Guimond v R (1979) 44 CCC (2d) 181 is not really in point. It is concerned with the principles under pinning a decision for a separate trial in a conspiracy situation. The position where one of the conspirators has made a complete confession (evidence which is only admissible against him and not against the other) is so far removed from the present discussion as to be of no utility. Secondly, and by way of contrast, R v Dinh [2000] NSWCCA 536 is directly in point. It establishes the continued operation of the Ahern principles, post the introduction of the Evidence Act 1995. It also emphasises, when properly examined, that evidence of the kind here is admissible, in a limited way, as circumstantial evidence supporting the existence and scope of the alleged conspiracy. The activities of the other conspirators were held admissible against Mr Dinh although he did not join the conspiracy, or at least arguably had not so, until very late in the piece. Finally, Dinh’s case answers one of Mr Dalton’s arguments by emphasising that, in fact, there will be very few conspiracy trials where a separate trial is warranted. (Wood CJ at CL had ordered a separate trial for Dinh, but when the matter came before the second trial judge, Dunford J, he had a better appreciation of the evidence likely to be led at the trial, and concluded that Dinh should be jointly tried with the others).

53 Thirdly, the real point where Mr Dalton and I part company on this issue is in relation to his continued insistence that the evidence in question here is properly described as evidence of a confessional nature (admissions). In my opinion, it is not, and it is not tendered for that purpose either against the other conspirators on the first basis, or against the individual, on the second. It is true that the Crown intend to use the evidence as evidence going to the state of mind of the individual accused, but it is not evidence of the truth of any of the statements he or others have made. More significantly, it is not to be used against the other conspirators, otherwise than for a non-hearsay purpose.

54 With all due respect, I would conclude that Mr Dalton, in his arguments, has simply failed to accept and recognise to the distinction drawn in Ahern between evidence going to the existence and scope of the conspiracy and, by way of contrast, evidence of acts done in furtherance of the conspiracy.

55 Finally, Mr Dalton attempted to argue from an analysis of R v Masters, that his principal proposition had some validity. This was somewhat at odds with his original submissions where he had argued that Masters had, in effect, been “altered” by the provisions of the Evidence Act. In any event, I have made a careful analysis of Masters’ case in my earlier decision. There is nothing in Mr Dalton’s submission that leads me to alter the conclusions I drew and expressed in that earlier decision. Section 87(1)(c) simply does not create or extend the “protection” that is at the heart of Mr Dalton’s argument.

The specific conversations

56 I do not propose to address each of the examples set out earlier in this judgment in any detail. It will be sufficient to analyse two of them to make the points necessary to establish my view of the admissibility of the evidence.

57 The first, for convenience's sake, will be once again the conversation involving Moustafa Cheikho and another person (in the presence of Touma) on 24 October 2004. In my view, the observation made by Moustafa Cheikho regarding training and dying while training as a martyr is admissible as against all the accused. It is admissible as a piece of circumstantial evidence, which together with many other facets of the evidence in the Crown case, is relevant to the existence and scope of the conspiracy. It is relevant in this way to shed light on whether there was a combination of some kind between the men and, if so, the nature of that combination. Secondly, it is admissible to show the state of mind of Moustafa Cheikho. It is not relied upon to prove the truth of the matters stated by the accused but is an objective fact (what he said), relevant to bring to bear on his actions, his association with the others and his possession of extremist material.

58 The second illustration occurs in the same conversation. This is where Moustafa Cheikho expresses a desire that when the Australians in Iraq are captured, they will be killed by decapitation. Once again, this is evidence admissible against all of the accused which, when taken with other evidence in the Crown case, points to the existence and scope of the alleged conspiracy. It is also admissible against Moustafa Cheikho as to his state of mind. In neither case, is the evidence tendered for a hearsay purpose.

59 In both illustrations, in the case of the first basis of admissibility, the evidence will in due course have no force against the other conspirators unless each of them are shown to be participants in the alleged conspiracy. As to the second basis of admissibility in each case, if it is ultimately demonstrated that the statements may be seen as part of an act or actions in furtherance of the conspiracy, they will, in due course, be held to be admissible against the other conspirators as showing their participation in the act or acts in furtherance. This will only occur, of course, if there is independent evidence which enables the Court to conclude it is reasonably open to find that the other defendants were parties to the conspiracy. Thirdly, the evidence may be relevant against the individual accused to rebut any suggestion that the overt acts were carried out innocently and without a terrorist purpose.

Conclusion

60 This is, in effect, the third decision I have given in relation to the principles of evidence that are relevant to the proof of the conspiracy charge. Whether I be right or wrong, the point has now come where the defendants must, subject to any avenue of appeal, accept that these are the principles that will guide the reception of evidence in the forthcoming trial. It will now be necessary for the Crown to re-evaluate its position, determine the extent of the evidence of the present kind it proposes to lead, and to make its final decision regarding whether or confirming that the evidence is not to be used by way of an admission. This will require the Crown to determine whether it will ask for a limitation of use under s 136, and to determine whether or not a direction should be given to the jury at the time the evidence is given. Equally, the moment has now come for the defence to accept that the general body of evidence is admissible on the various bases I have outlined in my three decisions. This means that I expect the defence to co-operate with the Crown so that the evidence may be presented in a compact, coherent and intelligible way. There is a need for the defence to co-operate with the Crown so that the course of the evidence, and the directions that are to be given, are fully agreed before the jury is empanelled.

61 The final matter I wish to address is the underlining proposition in Mr Dalton’s submissions that there is, in some way, an element of unfairness in these individual “extremist” statements being admissible against all the other accused. I cannot agree with the proposition. The rules of evidence that govern the admission of evidence in a conspiracy case are now well settled. In general, they allow for the admission of evidence of statements by one conspirator that is relevant, not to prove the truth of what is stated, but simply relevant to the existence of a possible conspiracy, and relevant to shed light on the nature of that conspiracy. There is nothing unfair about this. There is nothing new about this. The evidence is not to be used for a hearsay purpose, and its limitation in this way is made perfectly clear to the jury. The co-conspirators rule itself goes much further than that. It enables, in the stipulated circumstances, anything said or done by one conspirator in furtherance of the common purpose to be admissible in evidence against the others, even though they were not there or took no part in that particular action. Moreover, evidence of this kind is not limited in any way. The authorities do not suggest that this is unfair, but rather it is a consequence of or derives from the nature of the combination itself.

62 It is, of course, always necessary to have regard to ss 135 and 137 to determine whether there is an intrusion of unfair prejudice in relation to the tender of any particular piece of evidence. But beyond that, I reject any suggestion that there is anything unfair arising from the proper and careful application of the Ahern principles.

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