Regina (C'Wealth) v Baladjam [No 57]

[2008] NSWSC 1471

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 57] [2008] NSWSC 1471
HEARING DATE(S):	14/10/08
JUDGMENT DATE :	24 October 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Application for separate trial is refused.
CATCHWORDS:	CRIMINAL LAW - Application for a separate trial - Application of revelant principles.
LEGISLATION CITED:	Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 Evidence Act 1995
CASES CITED:	Ahern v Regina (1988) 165 CLR 87 Domican v R (1989) 43 A Crim R 24 at 26 Webb v R (1994) 181 CLR 41 at 88-89 per Toohey J R v Baladjam & Ors [No 49] 30 September 2008 R v Bikic [2000] 112 A Crim R 300 R v Ce [2005] NSWCCA 362 per Grove J at paras 4-5 R v Chai (1992) 27 NSWLR 153 R v Fernando (1999) NSWCCA 66 at (195-226) R v Macrailed NSWCCA 18 December 1997 R v Masters, Richard & Wunderlich (1992) 26 NSWLR at 460 R v Merrett 19 A Crim R 363 R v Middis SC NSW 27 March 1991, Hunt J (unreported) at p 4
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 57] 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
FILE NUMBER(S):	SC 2007/2397001; ; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001;
COUNSEL:	R Maidment SC; 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 T. Hale SC; G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic
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 Lawyers Corporation Ltd - Accused Mulahalilovic

-1 -

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

WHEALY J

PARRAMATTA: FRIDAY 24 October 2008

2007/2397001 - Regina v Omar BALADJAM [No 57]
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
2007/2455001 - Regina v Mazen TOUMA

REASONS FOR JUDGMENT - Application for a separate trial by Mirsad Mulahalilovic

1 HIS HONOUR: On Tuesday 14 October 2008 I received written submissions and heard oral argument relating to the application by Mirsad Mulahalilovic for a separate trial. Arguments on the accused’s behalf were presented by Mr Turnbull SC. After hearing argument, I announced immediately that I had decided, in the exercise of my discretion, that I would not order a separate trial.

2 I promised to make reasons available today. The urgency of the situation arose because, following my decision, an application for leave to appeal was lodged on the accused’s behalf. The appeal is listed before the New South Wales Court of Criminal Appeal on Monday 27 October 2008. The jury empanelment process is, as well, to commence on that same day, Monday, 27 October 2008, although it is not anticipated that a jury will be empanelled until Friday 31 October 2008.

3 I should add that the separate trial application was originally listed for hearing on a much earlier date, which made specific allowance for the looming prospect of jury empanelment. Mr Turnbull Sc, however, asked the Court for an adjournment on two occasions and these were, with some reluctance, granted. Mr Turnbull assured the Court that the reasons for the adjournment were proper and the Crown raised no objection to the adjournment on each occasion. While I do not know precisely what those reasons were, the consequences have been that the decision in relation to the separate trial application, and the publication of reasons as a consequence, have been delivered and made respectively very close to the jury empanelment date.

4 For these reasons, it has been necessary to deliver reasons promptly and in relatively short form.

The relevant principles

5 The application for a separate trial is brought pursuant to s 21(2)(b) of the Criminal Procedure Act 1986. This section confers a discretion upon the Court to make an order for a separate trial “if of the opinion…that for any (other) reason it is desirable “to do so”. The relevant principles have been agreed between the parties for the purpose of this application. They are as follows: -

(a) Where the Crown case is that the accused were parties to some form of joint enterprise, the starting point is that they should be tried jointly ( Webb v R (1994) 181 CLR 41 at 88-89 per Toohey J; Domican v R (1989) 43 A Crim R 24 at 26.

(b) The accused bears the onus of establishing the reasons for the making of an order granting a separate trial ( R v Bikic (2000) 112 A Crim R 300).

(c) To succeed, the applicant for a separate trial must demonstrate that there is a real risk that a positive injustice would be caused to him (or her) as a consequence of a joint trial ( R v Ce (2005) NSWCCA 362 per Grove J at paras 4-5). In that case his Honour said:

“It is well-established that principle and policy both indicate that persons charged with committing an offence jointly ought be tried together, even where accused persons seek to cast the blame upon each other: Webb & Anor v R . That rule is subject to a proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered ( R v Oliver (1987) 57 ALR 543; R v Patsalis & Anor (1999) 107 A Crim R 432).”

(d) A separate trial is to be ordered where an applicant is able to demonstrate:

(i) the evidence against the applicant is significantly weaker than, and different to, that which is admissible against another co-accused with whom he is to be tried; and
(ii) the evidence against the other accused contains material which is highly prejudicial to the applicant, although not admissible against him; and
(iii) there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material ( R v Middis (SC NSW - 27 March 1991, Hunt J - unreported, at page 4); R v Baartman (CCA NSW - 6 October 1994 - unreported); R v Georgiou (1999) NSWCCA 125 at (5)). The applicant must show that positive injustice would be caused to him in a joint trial.


(e) In determining the issue as to whether a separate trial should be ordered, the Court must take into account not only the interests of the applicant but also the interests of the administration of justice. In fact, it is the interests of justice as a whole that are to be the governing factor. But, of course, among those interests are the interests of the accused.

(f) One reason which has led to joint offences being tried together is the important policy reason related to the desirability that the same verdict and the same judgment should be returned against all those concerned in the same offences. That is to say, there is a need to avoid a situation, which might commonly arise where inconsistent verdicts might be given because of the holding of separate trials. It is not simply a question of saving time and money, although this is a consideration that may be taken into account ( R v Merrett 19 A Crim R 363 per Slattery CJ at CL and Carruthers J; R v Fernando (1999) NSWCCA 66 at (195-226)).

6 I examined and commented at length upon these principles in an earlier decision (R v Baladjam & Ors [No 49]) given on 30 September 2008. There was, at that time, for the purposes of that application, a qualification suggested to the Middis principles although, in the ultimate, I found that no such qualification had been stated or endorsed by the Court of Criminal Appeal. That particular argument however, has not been advanced on the present application, and the principles are as I have stated them to be.

The case against the 9 accused

7 Nine men were, last year, indicted before me on a charge of conspiring with each other to do acts in preparation for a terrorist act or acts. The span of the alleged conspiracy, in terms of the indictment, is between about 8 July 2004 and November 2005. (Since that time, one of the accused pleaded guilty and has been sentenced today. Another has been found unfit to plead and has, for that reason, been granted a separate trial).

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

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

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

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

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

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

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

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

10 The Crown case is, broadly speaking, a circumstantial one.

Arguments on behalf of the accused Mulahalilovic

11 The applicant provided very detailed written submissions covering 21 pages. Moreover, there were extensive submissions made in oral form. Without wishing to do any injustice to the extensive nature of these submissions, I believe they may be concisely but fairly summarised as follows: -

(i) Although the applicant did not argue the case against him was a weak one, he nevertheless argued it was not as strong and overwhelming a case as the case to be made against the other men. This was so for a number of reasons. First, in general terms, it could be said that the applicant was a “late arrival” on the scene. Secondly, the volume of material found in the applicant’s possession (whether it be ammunition, chemicals, extremist material etc) was small in comparison to the materials found in the possession of the other men. Thirdly, the possible situations involving the alleged use of covert behaviour by the applicant were far less in number (and far less certain) than the covert behaviour of the other men. Finally, the association between the applicant and the other men was somewhat limited. The principal association was between the applicant and Omar Baladjam, who was a friend and workmate of the applicant from at least April 2005 onwards.

(ii) Against the background of these preliminary observations, Mr Turnbull SC took the Court through the whole of the evidence that might be led against his client. This entailed a very detailed analysis of the alleged possession of weapons, ammunition, chemicals, extremist material and the like. Mr Turnbull’s overall submission was that a jury, properly instructed, might well conclude that the overall circumstantial case presented against his client allowed for an explanation inconsistent with guilt. It was a case, a classic case of competing inferences.

(iii) Mr Turnbull argued, in effect, that the strong and overwhelming case against the other men would poison the atmosphere of the trial for his client. He submitted that much of the material admissible against the other men would not be admissible to show his client’s participation in the conspiracy, essentially because of his “late arrival” on the scene. Although this evidence would not be admissible against the applicant, Mr Turnbull submitted that the accused’s position would be seriously prejudiced because there would arise a strong likelihood of guilt by association.

(iv) Finally, Mr Turnbull argued that this would be a complex and lengthy trial. By contrast, the case his client could be concluded within a matter of weeks. In those circumstances, the very complexity of the trial would be likely to prejudice his client, and result in a situation where there would be a real possibility for the applicant’s case to be missed, lost or misunderstood.

12 Overall, Mr Turnbull’s submitted, in conclusion, that a case to separate his trial had been demonstrated because the evidence against him was significantly weaker than that against the others; that highly prejudicial material would be led in the trial which was inadmissible against his client, and that the weaker Crown case would improperly become stronger against him. Directions would be inadequate to safeguard against the jury misusing the evidence inadmissible against the applicant.

The Crown evidence against Mulahalilovic

13 I have referred here and elsewhere to the applicant being involved in the alleged conspiracy “late in the piece”. In one sense, this is not completely accurate as there is evidence that the applicant had associated with a number of the co-accused back in April 2005. Apart from this limited social meeting however, it is fair to say that most of the Crown evidence against Mulahalilovic relates to his activities (and those of some of the co-accused in his presence) during the period late October to early November 2005. To obtain a full understanding of the way in which the Crown alleges that the applicant interrelated with the others for the purposes of the conspiracy, it would probably be necessary, or at least desirable, to recite considerable detail of the Crown Case Statement showing the activities of the other accused at the earlier point of time. Because of the need to give urgent reasons in the present matter, I will not do this. It is sufficient to say that, over a period of time, a number of the accused are shown to be acting in concert, according to the Crown case, in relation to the purchase of ammunition and/or chemicals. It is often done covertly. However, the Crown case is that by the end of October 2005, the alleged conspirators were well aware of the fact that surveillance was increasing in intensity. According to the Crown case, there was a need to secrete and hide ammunition and the like that had been obtained. There was, for example, a good deal of covert communication allegedly occurring between Baladjam and Elomar. They used telephone services in false names to speak to one another. The contents of the conversations themselves were often couched in terms of boyfriend to girlfriend e.g. “Hey honey. Can you help me babe my car is in the mechanics”; “Hey babe, u wanna go to the beach today with Abby and I”. In the same period, Baladjam is making enquiries of chemical suppliers in false names, asking for sulphuric acid, and making enquiries about purchasing ammunition..

14 On 26 October 2005 at approximately 2.45pm the applicant, along with Baladjam, attended the vicinity of the Horsley Park Gun shop. He remained outside the store while Baladjam went in and made enquiries concerning boxes of ammunition. The Crown says that this event is of itself important, but says that it became all the more so in the context of a number of later conversations between the applicant and Baladjam, some of which I will mention shortly.

15 On 3 November 2005, the applicant himself attended Bunnings Warehouse. A receipt for the purchase of a quantity of PVC and end caps was found in his premises at the time of his arrest. (The Crown alleges that the piping and end caps were being used by the conspirators for the purpose of storing and concealing a large quantity of ammunition that had been purchased. This was done in the context of their being increasingly aware of intense surveillance).

16 The items purchased by the applicant on this occasion were the subject of a conversation between he and Baladjam on 4 November 2005. In the course of that conversation Baladjam asked whether or not the applicant had “got everything”, to which the applicant replied that he had not, but that he would “go and get some today”. The latter is, on the Crown case, a clear reference to the fact that later that day, Baladjam accompanied the applicant to another hardware store where the applicant purchased 9 PVC caps to be used on the end of lengths of the piping.

17 On the same day, the applicant (in the company of Baladjam) returned to his (the applicant’s) house, where they were seen to unload four green cylinders, each approximately 1 metre long, into Baladjam’s vehicle which he subsequently drove to Chester Hill.

18 Significantly, and later still on that same day, Baladjam and his brother were seen to attend the applicant’s premises, following which the applicant assisted in loading a number of items (which had apparently been retained at his premises) into a van. The van was then seen to be driven away from Baladjam’s premises with the back window covered in black plastic.

19 At the time of the arrest of the applicant on 8 November 2005, Police found a receipt in his wallet dated 19 August 2005 issued by the Jansa Arms Co in respect of the purchase of a quantity of what was described as “7-62-39 ammunition”, along with a page from a notebook bearing (inter alia) the words “7.62 x 39 cleaning kit” and “black powder for black guns” .

20 The ammunition to which this receipt relates has never been located. However, the ammunition is of a type which is capable of being used in a variety of firearms including AK-47, bolt action and Zastava rifles. Also found in the applicant’s wallet was a torn page from a notebook on which was written the notation “308 or 7.62 x 39 cleaning kit” along with the words “black powder for black powder guns”. The type of ammunition to which the receipt and note related (i.e. 7.62 x 39 mm) is the same as that which was:

(a) purchased by Elomar from the Horsley Park Gun Shop on 27 January 2005;
(b) found in the possession of Touma on 3 June 2005;

© found at, and subsequently seized from, Elomar’s premises at the time of the execution of a Search Warrant on 27 June 2005;
(d) the subject of an enquiry made by Baladjam at the Condell Park Firearms Range and Gun Shop in late July 2005; and
(e) recorded on a “to do” list found in Baladjam’s possession at the time of his arrest;
(f) found in the possession of the co-accused Touma at the time of his arrest.

21 It is not without significance that the receipt held by the applicant related to a purchase made on 19 August 2005, which was after the seizure by the Police of the quantities of similar ammunition which had been held by the co accused Touma and Elomar.

22 The majority of recorded conversations to which the Accused was a party were with Baladjam. The Crown submits that four of those conversations are of particular significance.

23 The first was on 29 October 2005 at which time the applicant and Baladjam spoke of (inter alia) “the quality of the vegetables”. A second similar conversation took place between them on the following day. Significantly, these conversations took place within days of:

(a) Baladjam’s attendance at the Horsley Park Gun Shop on 26 October 2005;
(b) other enquiries having been made by Baladjam at other Gun Shops about the availability of quantities of ammunition and
(c) enquiries made by Baladjam in relation to, and the subsequent purchase of, 900 rounds of 9 mm calibre ammunition.

24 It is the Crown case that the references to “vegetables” in the conversations between the applicant and Baladjam were references to ammunition. The Crown says it is noteworthy that, in the course of each of those conversations, the applicant appeared to display a clear understanding of the use of expression as a code.

25 The third conversation of significance occurred on 2 November 2005 in the course of which Baladjam said to the applicant:

“Okay then,…. just and listen, when you’re driving look out behind you man, because I saw a lot of .. I saw a lot of smoke coming out of the back of your car before”.

26 The applicant responded:

“Yeah alright, Okay. Yeah, no worries, yeah”.

27 On the Crown case, this was a reference to the need to be vigilant in checking for the presence of the Police. Once again, it is significant, according to the Crown, that the applicant acknowledged a clear understanding of what he was being told by Baladjam.

28 The fourth conversation is one which occurred on 5 November 2005. In this conversation, the applicant is recorded discussing the burning of the Qur’an. Leaving aside issues of translation “never mind, they’ll get theirs too”, the statement made by the applicant is a threatening one. The statement, according to the Crown, must be viewed in the context of the applicant’s activities and, in particular, his possession of a quantity of extremist material at the time of his arrest.

29 The Crown also relies upon a considerable body of evidence showing a good deal of association between the applicant and Baladjam (and to a limited degree some of the others) in the period of early November 2005. Some of this association occurred late at night or in the early hours of the morning. It occurred in the vicinity of Loader Lane Punchbowl and was, on some occasions, preceded by telephone conversation in which the necessary arrangements to meet were made. Loader Lane is a poorly lit suburban laneway. It is located immediately to the rear of a set of shops. It is not, according to the Crown case, a location that lends itself to social activity particularly late at night which is when the majority of the relevant meetings took place. Further, the Crown will seek to go to the jury on the basis that the activities of the applicant and others in this area at the time were often the antithesis of social inter reaction. It will be said that, although the men were in the same vicinity, they remained at a distance from one another, and their activities were more consistent with them acting covertly. Conversations recorded between Baladjam and the applicant about meeting late at night suggest that the men were reluctant to state, in definitive terms, where it was they were proposing to meet. The Crown also relies on evidence of contact between the applicant and Elomar, or at least the inference of such meetings.

30 It is next necessary to mention the material that was seized from the applicant’s home when he was arrested. I have made some reference to this already. Of importance for the present discussion is the material of an extremist kind that was found at the applicant’s premises. These include videos of Russians, or other captives, being executed in the most brutal and dreadful manner. For example, there is the execution of a Korean prisoner by a group of masked men. The beheading is absolutely ghastly to watch. There are other beheadings as well on other videos. There are videos showing Osama bin Laden in an approving context, and there are a number of explosions involving the destruction of vehicles and persons. There are documents extolling jihad, and praising the participation of both men and women in jihad. There are documents exhorting the need to defend Muslim lands and praising the activities of al-Qaeda. There is no need for me to describe it all. It is sufficient to say that there is a considerable amount of extremist material of this kind, and it fits precisely within the general nature of the Crown case alleged against all of the accused. In some instances, the discs held by the applicant bear the same date and time as those appearing on the same discs held by others of the accused. There is a limited area of commonality. Finally, in addition to the extremist material, the police also seized a 7.92 x 57m Mauser rifle and a receipt for the purchase of a quantity of hydrochloric acid dated 1 November 2005. There were also containers of hydrochloric acid located in the yard of the premises occupied by the applicant and his family.

Refusal of a Separate Trial - Reasons

31 On 14 October 2008 I came to the view, having applied the Middis principles to the circumstances revealed in the arguments, that the applicant had not discharged the onus of demonstrating that a separate trial was warranted. In particular, I was satisfied that no injustice would be occasioned to the applicant if the joint trial were maintained. I was positively satisfied, indeed, that the overall interests of justice, including the interests of the accused, required that he be tried jointly with the other remaining six accused. These are my reasons.

32 First, this is a conspiracy charge. The Crown alleges that each accused, including the applicant, was a participant in an agreement to do acts in preparation for a terrorist act or acts. It will often be the case, in a conspiracy trial, that different tasks will be undertaken by different conspirators. Some will have much to do, some will have less. It will often be the case that some alleged conspirators will join the plot later than others have done. This may happen very late in the piece, indeed perhaps not long before the plot is disrupted and apprehension occurs. In some cases, it may be difficult for the Crown to demonstrate beyond reasonable doubt that a late arrival was a participant in the criminal plan. For example, a jury may take the view that such a person has simply been innocently caught up in the rush of things. Much will depend on the jury's perception of that accused's own words and actions.

33 By way of contrast, in other cases, a particular conspirator may leave the conspiracy long before the criminal objective is attained. But, once again, his guilt or innocence will often fall to be determined by his own words or actions before he departed the scene.

34 In these instances, it is plainly desirable, as a general proposition, that all accused be tried together. Provided no positive injustice is occasioned to any particular individual, the dictates of every aspect of the interests of justice call out for, and demand, that there be a joint trial.

35 Secondly, the nature of the case sought to be made against the applicant here is essentially the same as that sought to be made against the others. He was a devout practising Muslim. His possession of extremist material tends, at least at first blush, to suggest that he held views of a similar kind to those said to have been embraced by the others in relation to the use of violent jihad to defend against the worldwide Muslim situation.

36 The applicant had associated socially with a number of the others. He appears to have been particularly close to Baladjam and this relationship brought him into contact with Jamal and possibly Elomar.

37 A number of the men were influenced in spiritual matters by the extremist Melbourne cleric Benbrika. Although there is no evidence to suggest that the applicant had any particular relationship with the Melbourne cleric, there is, as I have said, evidence to suggest that he may have held an extremist position. In matters of spiritual practice, the applicant was close in physical terms to a number of the other men: He was, for example, with some of them, or near them, on a close basis during the Ramadan period in November 2005.

38 Importantly, the case against him suggests that he too had an involvement, perhaps not an overly large one, in the acquisition of ammunition. This was particularly so in relation to the activities of Baladjam. In addition, he appears to have purchased ammunition in his own right, at least on one occasion. There is evidence that he had purchased hydrochloric acid, and that he was arguably in possession of containers of the same liquid at the time of his arrest. These are not necessarily sinister matters but allegations of a very similar nature are raised, in one form or another, against each of the accused.

39 There are, of course, in his case, differences of degree and timing in relation to the extent of the activities alleged to have been undertaken by him. This is not surprising, given his late arrival on the scene. But the fact that the case against him is essentially of the same character as that advanced against the others is by no means an unimportant factor operating in favour of the desirability of there being a joint trial.

40 Thirdly, the applicant's defence (if I may use that expression simply for the sake of convenience) will not be dissimilar to that likely to be raised by the others. This will be to assert that the Crown circumstantial case has simply “got it wrong”. The inferences suggested by the Crown, the applicant may argue, will be more than offset by the competing inferences available.

41 Here was a group of young Muslim men deeply upset by unjust and discriminatory treatment aimed both at their international brethren and themselves, protesting, as it were, against this unfair behaviour. The accused will argue that any actions they may have taken did not have a terrorist intent (or at least the Crown will not have proved they did), and the entire case, it will no doubt be argued, represents a distorted overreaction by over-anxious authorities eager to secure a kill for their political masters. This is likely to be, as I say, the ultimate defence position relied on by all the accused.

42 Of course, there is a slight difference of emphasis in the position of the applicant. Because he arrived late on the scene, and because his involvement was more short-lived, he will be able to argue, as a preliminary point of defence, that he was not a participant in the conspiracy in any event. I do not imagine, however, that he will be alone in raising a preliminary argument of this kind. But his fallback position must be to the extent that he may have been swept along with the others, that the venture was not a criminal one and that he himself had no criminal intent. Once again, the fact that the applicant and the others will share, at least to some degree, the same defence position is a relevant factor supporting the notion of a joint trial.

43 I should interrupt these reasons to say something in a little more detail about the applicant's defence position. As I indicated at the outset of these reasons, Mr Turnbull had argued that a close and precise appraisal of the facts might well suggest to the tribunal of fact that there is the possibility of an overall explanation for the circumstances revealed by the evidence that is inconsistent with guilt.

44 In relation to the chemicals, for example, senior counsel pointed out that the applicant was a tradesman and painter. Possession of the particular chemicals might well be considered to be simply consistent with his occupation and trade.

45 In relation to the applicant's possession of a Mauser rifle, Mr Turnbull pointed out that the applicant was a licensed firearms holder. The rifle and its ammunition were held in accordance with the licence conditions. This may be considered, senior counsel argued, consistent with the rifle being used for purely recreational purposes.

46 In relation to the possession of extremist material, Mr Turnbull made a number of points. First, given the overall material on the applicant's computer, the amount of extremist material was quite small. Secondly, other persons had access to the computer. Thirdly, some of the material was in the Arabic language and his client did not read or speak Arabic.

47 There was no evidence captured on the listening devices (with one exception) to suggest that he had expressed violent views about infidels. So far as the use of a "code" was concerned, counsel suggested that the Crown was "going over the top" and that the reference on a number of occasions during his conversations to "vegetables" may well have been genuine and real. The purchase of the PVC material may have been, as well, quite innocent.

48 I have not traversed each and every submission by counsel that focused on this one point. Overall, however, two things may be said. First, these are really matters for the tribunal of fact. They may, indeed, be quite persuasive matters in the minds of the jury, but their resolution is not a matter for the trial judge.

49 Secondly, the nature of the defence, namely the pointing towards a variety of explanations consistent with innocence, is, as I have earlier indicated, precisely the task that will be undertaken by each of the joint accused. This will be proffered, in each individual case, against the framework and background of a very similar array of evidentiary material. There may be differences of emphasis, some may have a more difficult task than others, but the basic approach in each case will be relatively similar.

50 Indeed, the very simplicity of the applicant's defence case may well operate positively in his favour during a joint trial. His situation, as a late arrival, may be favourably contrasted with that of the others. Far from being prejudicial, such a comparison may well represent a positive forensic advantage to him.

51 The fourth and final matter relates to the important proposition that there will be, in a joint trial, highly prejudicial material before the jury that is not admissible against the applicant. This will be because of the co-conspirators' rule or otherwise. I am firmly of the view, however, that this submission cannot be accepted. I will explain why this is so.

52 In a number of earlier decisions I examined at length, and in considerable detail, the various ways in which at common law evidence could come before the jury in a conspiracy trial (see R v Baladjam [No 11], [No 19] and [No 38]). At common law, the relevant legal principles derived from Ahern v Regina (1988) 165 CLR 87. In doing so, I set to one side the additional ingredients or elements arising under the Criminal Code Act 1995 (Cth).

53 In R v Baladjam [No 19] especially, I set out and discussed a number of the recent authorities in relation to the admission of evidence in a criminal conspiracy case. These authoities essentially endorsed the matters 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 as 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.

54 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. (See R v Masters (1992) 26 NSWLR at 460-666). 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”.

55 To these passages may be added the comments of Badgery-Parker J in R v Chai.

56 In R v Chai (1992) 27 NSWLR 153, the principal judgment was in fact given by Badgery-Parker J, with whom Hunt CJ at CL and Allen J agreed). His Honour 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).

57 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.”

58 (Section 87 of the Evidence Act 1995 has a relevance to the issue, but it does not in substance alter the common law position: R v Macrailed NSWCCA 18 December 1997)

59 The important point here is that the Crown has made quite clear that, so far as the applicant is concerned, it is not the Crown's intention to rely on the co-conspirators' rule at all. Indeed, in view of his late arrival on the scene, there would, in any event, be scope for but a limited use of the rule in his case. But, as I say, the Crown has indicated its position fairly and squarely. This concession really takes the wind out of the applicant’s sails, even if there were substance in the principal argument he has advanced.

60 Accordingly, the evidence against the applicant will fall into two categories. First, there will be a considerable body of evidence going towards the existence and scope of the conspiracy. This evidence will only be available for use in a limited way in accordance with the authorities. The jury will be so directed in relation to this evidence. It will simply fall away against the applicant, unless the Crown satisfies the jury beyond reasonable doubt that he was a participant in the conspiracy.

61 The second category of evidence will be the direct evidence relied on by the Crown to prove against him that he was a participant. The applicant will be able to argue before the jury, as he did before me, that the direct evidence, being of a circumstantial nature, does not establish his participation beyond reasonable doubt.

62 Consequently, with the exception of one piece of evidence (Moustafa Cheikho's training with LeT - a matter admissible only against Cheikho), the whole of the evidence to be led against the other conspirators is admissible against the applicant in precisely the same way as it is admissible against the others. Indeed, the Crown has stated during the present argument that it is unlikely that the Crown will rely on the co-conspirators' rule, even against the other accused. The final time for determining that issue is normally at the close of the Crown case, but the Crown has strongly indicated that this is the view it takes at the moment, and that this is likely to remain the situation throughout the trial.

63 The Crown position, put simply, will be that each of the accused, including the applicant, will have to face the same body of circumstantial evidence designed to prove the fact and nature of the conspiracy. In addition, the Crown will rely upon the acts and declarations of each individual accused to prove his individual participation in the conspiracy. In this regard the applicant is in precisely the same position as each of his co-accused in that regard. His participation, and his role, will be essentially defined by his own acts and declarations.

64 Consequently, in this joint trial there will not be material which is highly prejudicial to the applicant, although inadmissible against him. This is an important factor and a significant reason why the Middis principles do not warrant a finding that a separate trial order should be made in the present matter.

65 I have in R v Baladjam [No 38] (para 52) and in R v Baladjam [No 49] (paras 43-52) examined a number of other cases where a separate trial has been considered or ordered. I will not repeat the analysis in this decision as the reasons are required urgently. The analysis in those two earlier decisions, however, should be regarded as incorporated in these reasons. That analysis demonstrates how the present application falls well short of the situation that has, in some instances, warranted a separate trial.

Conclusion

66 The Crown case against the applicant is by no means a weak one. Mr Turnbull did not argue otherwise. On the other hand, I accept that the evidence of participation in the case of a number of other accused is stronger than the evidence of the participation of the applicant in the conspiracy in the sense that it occurred over a much longer period of time..

67 Essentially, however, the nature of the evidence to be led against the applicant is the same as the evidence that will be led against each of the other accused. I do not accept that the presence of a large body of circumstantial evidence going to establish, on a limited basis, the nature and scope of the conspiracy will create any degree of unfair prejudice against the accused. This will be evidence admissible against him, just as it is admissible against the others. The essential issue in his case, at least on a preliminary basis, will be whether he was a participant in that conspiracy. That issue will fall to be determined by whether the Crown can satisfy the jury beyond reasonable doubt that the direct evidence against the applicant satisfies them on the issue of participation. The ultimate issue will then be, as it is with the other men, whether the Crown has proved that the conspiracy is of the kind alleged in the indictment, and whether the additional matters required under the Code have been proved or not.

68 These then are my reasons for refusing the separate trial application.

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