Regina (C'Wealth) v Baladjam [No 7]

[2008] NSWSC 756

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 7] [2008] NSWSC 756
HEARING DATE(S):	28/03/08, 01/04/08, 02/04/08, 03/04/08
JUDGMENT DATE :	15 April 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	I propose to admit the evidence of LeT training by Abood Absud and the identification evidence to be lead against Moustafa Cheikho. At this stage the evidence is not to be admitted against the other accused.
CATCHWORDS:	CRIMINAL LAW - Admissisbility of evidence - Test of relevance - ss 56 and 56 of Evidence Act 1995 - Facts in issue, and facts relevant to facts in issue. - CRIMINAL LAW - Exclusion of identification evidence under s 137 of Evidence Act 1995 - Matters of credibility and reliability to be left to the jury. - CRIMINAL LAW - Practice and Procedure - Evidence - Evidence of a resource being used for the purposes of a conspiracy - Whether evidence is admissible against all conspirators or only against one - Unfair prejudice - Directions to jury.
LEGISLATION CITED:	Evidence Act 1995 Criminal Code Act 1995
CASES CITED:	R v Shamouil (2006) 66 NSWLR 228 at 47-65 R v Lodhi [2007] NSWCCA 360 at 174-177 R v Mundine [2008] NSWCCA 55 at 33 R v Sood [2007] NSWCCA 214 at 26-43 R v Masters (1992) 26 NSWLR 450 at 460G R v Tripodi (1961) 104 CLR 1 Smith v The Queen [2001] 206 CLR 650 at 653 Odgers Uniform Evidence Law 5th Edition at page 114 Papakosmos v The Queen (1999) 196 CLR 297 at 307; 312 and 321-322 R v Lodhi [2006] NSWSC 641 J. D. Blick [2000] 111 A Crim R 26 Rex v Gunn & Howden (1930) 30 SR at 336
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 7] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'W'ealth) 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; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001
COUNSEL:	Ms W Abraham QC; G Bellew SC; C O'Donnell; Ms S McNaughton - Crown M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; T Ozen - Accused Elomar Ms D. Yehia; Ms S. Beckett - Accused Hasan G Scragg; D Carroll - Accused Jamal G Turnbull SC; A. Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; P King - Accused Touma
SOLICITORS:	C'Wealth DPP - Crown 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 Solicitors - Acused 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 15 April 2008

2007/2397001 - Regina v Omar BALADJAM [No 7]
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2399001 - Regina v Mohamed Ali ELOMAR
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2452001 - Regina v Mohammed Omar JAMAL
2007/2454001 - Regina v Mirsad MULAHALILOVIC
2007/2396001 - Regina v Khaled SHARROUF
2007/2455001 - Regina v Mazen TOUMA

JUDGMENT - Application to exclude evidence of training at a LeT camp in 2001

1 HIS HONOUR: This is the first of a number of pre-trial issues relating to defence applications to exclude evidence proposed to be led at trial by the Crown.

2 Nine men have been accused of conspiring with each other to do acts in preparation for a terrorist act or acts. The nature of the Crown case has been set out in considerable detail in earlier decisions. I will not pause to repeat those details here.

The evidence sought to be led at trial

3 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.

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

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

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

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

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

6 Against that background, the Crown proposes to lead evidence that one of the accused, Moustafa Cheikho, trained at a Lashkar-e-Taiba (LeT) camp in Pakistan in late 2001. The Crown case is that he trained there under the name Abu Asad. Since that time LeT has been proscribed as a terrorist organisation by the Australian government. In 2001, LeT provided training to a variety of terrorist groups and to any individual Islamist extremist wanting to undergo Jihadi training.

7 There are two discrete aspects to the evidence, although there is an overlap between them. The first aspect is the fact of training with LeT itself. The second is the identification or recognition process that purported to place Moustafa Cheikho as the man Abu Asad at the training camp in 2001.

8 I will first set out a summary of the evidence likely to be called. The material is taken from folders in evidence and the written submissions before me in this preliminary application.

9 In October/November 2001 Yong Ki Kwon attended a Laskar-e-Taiba (LeT) camp in Pakistan. He identifies Moustafa Cheikho as one of the trainees at that camp. It is alleged that at the camp Moustafa Cheikho participated in physical training and firearms training.

10 Kwon’s evidence includes the following:

(a) In the northern summer of 2000 Ismail Royer asked Kwon if he was interested in going to Laskar-e-Taiba (“LeT”) training camp in Pakistan. (b) On the weekend after 11 September 2001 an Islamic teacher, Ali Al-Tamini advised a group which included Kwon, to leave the USA and join the Mujahadeen. Royer was at the meeting and offered to help those present get there. On that day (about 16 September 2001) Kwon decided to go. (c) Kwon’s purpose in obtaining the training was so that he could later get into Afghanistan. (d) LeT is a religious organisation in Pakistan, which has a military operation against India in Kashmir. (e) In America, Kwon had done some training (e.g. attending firing ranges and participating in paintball) to prepare if there was a need in the future to go and fight for Islam. (f) Royer assisted Kwon (and the others) to contact LeT. Kwon took an “Abu” name. This is an Islamic tradition to go by a nickname where involved in “Jihad type activity” to protect your identity. This involves when you are fighting for Islam. (g) On 20 or 21 September 2001 Kwon and Hasan left the USA and flew to Karachi, Pakistan via Lahore. They stayed with Hasan’s relatives. (h) After about two weeks Kwon, Hasan and two other Americans who had joined them travelled to Lahore by train. They made contact with a LeT office in Lahore. Thereafter they were taken to the training camp. (i) They were first taken to a “base” camp at Muzzafarabad in Pakistani occupied Kashmir. They spent a night there and then proceeded to Camp Masada. (j) Camp Masada was a camp for foreigners. The majority of the people were not Pakistani. This camp was located on a mountain side with an altitude of about 4,000ft. There were three buildings and flat training ground in the middle. (k) On arrival Kwon and the others were informed of what was involved in the training. They were told:

“They said that training is in three stages, and the first training they told us it would last about 12 days and it is getting familiar with weapons, small fire arms. And then they said the second stage will take about 33 days and that’s more like guerrilla type training. And then they never really told us anything much about the third stage, except that, you know, we found out later that the third stage are only for people who are committed into going into Kashmir”.

Stage one took place at Camp Masada. That training included:

“Well, in the morning everyone has to do, I guess, physical training where you run and then you do some stretches and then you do, you know, like push ups and sit-up type of things for maybe like an hour and a half, and then we’ll split into our training groups and my group, we would go into one of the instructors rooms and they would show us firearms. First we’d would go over like the history about the weapon and specifications about the weapon, then the instructor would take it apart, put it back together and then we would have to take it apart and put it back together. And then they’ll take us outside and we will shoot maybe three to five rounds each person of that weapon and then we’ll come back and learn about another new weapon”.

This training took about nine days. The type of weapons included AK 47, M16, Grenov pistols and rocket propelled weapons.

(l) The second stage started as soon as the first stage had finished. Initially it took place at Camp Masada but after about a week they moved to a higher camp called Abdullah Ibn Masaud (the foreign part of which was also called Masada. During stage 2, the training involved:

“We learned just basic field manoeuvres, we learned like...the crawls - you know crawling how to move in the dark, things like that. We learnt how to camouflage ourselves. We learnt about recognizance. We did a lot of hiking – things like that”.

The second part of the training of stage 2 occurred at Camp Abdullah Ibn Masaud.

“The second part of Training involved...we learned about camouflage, we learned about recognizance, we learned how to use the walkie-talkie, we learned how to do the repelling and how to do a rope crossing...we did a lot of target practice with rifles and we learned like ambush tactics. And we did a lot of hiking type of stuff.

This camp was at about 8,000ft in elevation, it had a flat training ground and consisted of many buildings including a Mosque. Although the foreigners were in the same approximate area as the Pakistani’s who were training they were kept in a separate place.

(m) Kwon met Moustafa Cheikho at the second higher camp – Abdullah Ibn Masaud. Kwon knew Cheikho by the name Abu Asad. Abu Asad spoke with an Australian accent. He described him as follows:

“Abu Asad, he was Australian. He’s – I mean, I guess physically he’s light skinned, with a beard. He’s about my height or a little bit taller. He was, you know, thick build. He wasn’t slim. Australian accent...I’m 5’10...he was may be in his mid twenties”.

(n) Abu Asad was not in Kwon’s training group but he had a number of conversations with him. He spoke English (being one of only four men (including Kwon)) who weren’t fluent English speakers and said he was from Australia; his uncle had come to a LeT camp and trained and gone back; and he was not going to Kashmir but returning to Australia. Although not in the same group all trainees would do their physical training together before breaking up into their separate groups. They were together at lunch time, prayer and in the evening after sunset where there would be religious discussions. (o) Kwon saw Abu Asad every morning doing physical training “like running and push ups” . He watched Abu Asad’s group doing “rolling and crawling” . On one occasion he saw Abu Asad cleaning an AK47. (p) Kwon and Abu Asad were both at the training camp at the same time for a few days “may be 5 days...a week at the most...”

(q) Kwon completed stage 2 and their group left the camp being taken back to Lahore. They said goodbye to the other trainees including Abu Asad who remained at the camp.

11 On 27 September 2001 Moustafa Cheikho flew from Australia to Malaysia on flight MH122. He stated in his outgoing passenger card that the country in which he intended to spend the most time was Bangladesh.

12 On 22 January 2002 Moustafa Cheikho flew to Sydney from Singapore. In his incoming passenger card he declared the country where he spent the most time as Pakistan.

13 Moustafa Cheikho had on his computer and amongst the seized media material from his premises items relating to LeT and/or Kashmir.

14 On 26 November 2003 Kwon was interviewed by Springer in the presence of FBI Agents Mamula and Ammerman. Kwon was initially shown four photographs by Agents Mamula and Ammerman. None of those photographs were of Moustafa Cheikho. One of those photographs was Willie Brigitte whom Kwon recognised. Agent Ammerman then left the room, met with Mr Springer and returned to the room where Mr Springer conducted an interview with Kwon. During that interview Kwon was shown a folder containing twelve photographs, some of these photographs were in colour and some in black and white. Each photograph showed one man. The photographs were shown to Kwon one at a time and he was invited to say whether he could recognise any of the people shown in them. During the interview Kwon had described an Australian Abu Asad who was at the camp. When Kwon was shown the photographs he recognised photograph number 8 as Abu Asad. Photograph number 8 was of Moustafa Cheikho.

15 Finally, there are other aspects of the evidence that relate to a number of the accused “training”. This evidence is not sought to be excluded at this stage. But it is said to be relevant, as is the whole Crown case, to the evidence that is sought to be excluded. This includes evidence of:

(1) Possession by the accused of material (on computer/DVD/CD) that espouses the importance of training for Jihad; and

(2) Various accused organising and attending “training camps” at Curranyalpa and Mulga Creek. Hasan, Sharrouf, Khaled Cheikho, Moustafa Cheikho, Touma, Elomar (and Joud, Sayadi and Raad) attended at least one of these two camps. Both camps were at remote locations, were booked under a false name, were booked using mobile telephones obtained in a false name and the participants, despite requests to do so, failed to complete necessary paper work (which required amongst other things provision of names and addresses of those camping); and

(3) Conversations between various accused about the necessity of physical preparation; and

(4) Undertaking various physical activities (including bike riding, shooting, swimming etc); and

(5) Possession/association with “camping” related equipment including:

· obtaining camping equipment.

· Obtaining maps.

· Using two vehicles (FTD 113 and ATE 40N) registered in the name of another which contained amounts of such equipment and maps together with other items.

· Items located in the homes/vehicles of the various accused ( e.g. the padlocked back packs at Elomar’s home, the back pack at Hasan’s etc).

Reliance by the Crown on the evidence of LeT training

16 The Crown proposes to rely on the evidence of LeT training I have identified in two ways: first, it proposes to place the evidence before the jury as evidence against Moustafa Cheikho himself. Broadly, the Crown argues that the fact of LeT training is relevant and admissible as part of its circumstantial case against Moustafa Cheikho. It is said to be relevant to both the physical and fault elements of the offence charged in the indictment. These were said to be, first, the fact that he entered into the agreement; secondly, that he did so intentionally and thirdly that, under section 11.5, he had an intention that an offence or offences would be committed. In addition, the Crown wishes to lead the evidence on a second basis against all the accused (including Moustafa Cheikho). This is to be on the basis that he and his training represented an “available resource” to the conspiracy. The Crown asserts that the existence of this “resource” was one capable of furthering the objects of the conspiracy. Moustafa Cheikho opposes the tender of the evidence made against him personally. All the accused oppose the joint tender.

The issues to be determined

17 There are three broad questions to be determined. These are:

(1) Should the evidence of LeT training be admitted against Moustafa Cheikho?
(2) Should the identification evidence be excluded?
(3) If the evidence is admissible against Moustafa Cheikho, should it be admitted against all of the accused?

18 The first and second questions, as I have indicated, have an area of overlap. But the first question itself requires an examination of two issues. First, is the evidence of LeT admissible at all? And, if it is, on what basis? Secondly, if it is relevant and admissible, ought it be excluded under s 137 of the Evidence Act 1995? The second question I have identified, relating to identification, raises a separate issue as to whether the identification evidence itself ought to be excluded under s 137. I shall put to one side for the moment the resolution of the third question. It is common ground that it will arise for consideration only in the event that the first two questions are resolved in favour of the Crown. I will, however, identify the arguments advanced in relation to all three questions.

Arguments advanced on behalf of Moustafa Cheikho in relation to questions 1 and 2

19 Mr Button SC advanced the arguments on behalf of Moustafa Cheikho. The first principal argument related to the exclusion of the evidence concerning the accused's alleged training at an LeT camp. Mr Button accepted that attendance at an LeT camp in 2001 could, in a general sense, rationally affect the probability of whether the same person would enter into a conspiracy to do acts in preparation for terrorist activity in 2005. It was submitted, however, that a careful analysis of the suggested relevance of the evidence would reveal that it was in fact, or was at least likely to be used as, bad character or tendency evidence.

20 The first of these would be plainly inadmissible; and the second, Mr Button argued, should be rejected as not passing the tests in ss 97 and 101 of the Evidence Act 1995. In further development of the argument, Mr Button maintained that what the Crown was really doing was placing material before the jury so that they would reason "Because the accused engaged in terrorist training in 2001, he would be likely to be involved in the alleged conspiracy in 2005".

21 Mr Button examined in considerable detail the Crown case and endeavoured to show that the evidence of LeT training could not have a rational or logical connection to the issues in the conspiracy charge, unless it were being relied upon to show tendency or bad character. Senior counsel argued, finally, that if the evidence were found to have a level of probative value otherwise than as tendency evidence, it should be excluded under s 137 of the Evidence Act 1995.

22 In relation to the second principal argument, that concerning the exclusion of the identification evidence, Mr Button candidly accepted that recent and binding authority severely circumscribed the ambit of his submission. Despite this proper concession, Mr Button did endeavour, as best he could, to argue that there were areas of the identification process which might reinforce the proposition that the probative value of the identification evidence was low. Secondly, in this area, he repeated the general submissions he had made concerning the nature of the LeT evidence when compared to the Crown case in the conspiracy charge.

23 Finally, he raised two specific aspects of prejudice arising over and above the usual dangers of overemphasis upon identification evidence. First, he pointed to the very nature of the spectre of terrorist training and the adverse view of it likely to be reflected by the jury, according to current community attitudes. Secondly, Mr Button argued that there was a likelihood that a jury would infer that the photos selected and shown to Mr Kwon were of people suspected by the agency as being connected with training at the Pakistan camp. This inference would necessarily extend to the accused himself and occasion irrecoverable prejudice.

The Crown response - questions 1 and 2

24 The Crown, as did Mr Button, took me in considerable detail to the Crown case against Moustafa Cheikho and to the details of Mr Kwon's training and his involvement with the man Abu Asad. Overall, the Crown asserted that Mr Button's approach was too narrow. The thrust of Kwon's evidence was not, it was said, military training, although that was part of it. The real thrust, according to the Crown, was the overall concept of preparation for jihad, as reflected in Kwon's training. This involved physical, mental and spiritual improvement for an individual in the cause of jihad. The Crown identified the facts in issue and argued that the LeT training was properly to be seen as circumstantial evidence bearing upon those facts in issue. It bore upon, to take one example, the alleged acts by Mr Moustafa Cheikho in furtherance of the conspiracy, extending to his possession of extremist or instructional material.

25 The Crown acknowledged that there would be a need to give directions so as to ensure the jury did not use the evidence for tendency or bad character purposes. But it insisted the evidence bore both directly and indirectly upon the assessment of the facts in issue in the trial.

26 As to s 137 of the Evidence Act, the Crown submitted that the evidence was of high probative value. The Crown accepted that the evidence would, in the narrow sense, have a prejudicial effect, in that it would be likely to dispose the jury to accept that the accused Moustafa Cheikho was guilty of the offence charged in the indictment. This was to be distinguished from an unfair prejudicial effect wherein evidence might be misused, given more weight than it deserved or used in some irrational or illogical way.

27 In relation to the second question, the Crown referred me to a series of authorities which it argued establish that it is not open to a trial Judge, in assessing the probative value of any piece of evidence, to take into account an evaluation of its reliability or, for that matter, the credibility of the witness who gave the evidence; (R v Shamouil (2006) 66 NSWLR 228 at 47-65; R v Lodhi (2007) NSWCCA 360 at 174-177; R v Mundine (2008) NSWCCA 55 at 33; R v Sood (2007) NSWCCA 214 at 26-43. The New South Wales Court of Criminal Appeal recently observed in R v Mundine:

“That is, probative value is not to be determined by the weight that might be given to any piece of evidence. What is to be considered is the role that that piece of evidence, if accepted, would play in the resolution of a (disputed) fact - or the contribution it might, if accepted, make to that resolution. Apart from anything else, to make the assessment of probative value on the basis of the perceived credibility or reliability of the witness through whom it is given, or perceived weakness in the evidence, would be to attempt to anticipate the weight the jury would attach to it, a task to be undertaken by the jury when all the evidence is complete.”

28 Secondly, apart from the possible issue of the array of photographs itself, the Crown submitted that those matters which had been identified by Mr Button as possibly impinging upon the identification process were, in truth, issues of reliability or credibility. The Crown submitted that the probative value of the evidence of identification was reasonably high, but that no proper basis had been demonstrated for its exclusion under s 137 of the Evidence Act 1995. Once again, the Crown suggested that if there were any concern about prejudicial use of the evidence in an unfair way, this could be addressed by the giving of suitable directions.

The third question - is the evidence admissible against all accused?

29 As I said earlier, this question only arises in the event that the first two questions are answered favourably to the Crown. It will be convenient to briefly mention the arguments, however, at this point. This question was separately argued by Mr Button SC for Moustafa Cheikho; by Ms Yehia for the accused Hasan; by Mr Buscombe for his client Baladjam; by Mr Scragg for the accused Jamal, and by Mr Waterstreet for Khaled Cheikho.

30 Before outlining in brief form these arguments (there was, as might be expected, a fair level of overlap), it will be appropriate to say something about the basis on which the Crown has argued the material is relevant and admissible as against all of the accused.

31 The Crown argues that the evidence should be admitted against all of the accused on the basis that Moustafa Cheikho brings with him to the conspiracy the experience or expertise he acquired as a result of his training with LeT in 2001. He is, according to the Crown argument, a resource capable of being used in furtherance of the objects of the conspiracy. In that way, it is argued the evidence is relevant to the nature and scope of the conspiracy itself. The Crown said that the fact that one of its participants brings to the conspiracy the knowledge and training received in preparation for undertaking jihad affects directly and indirectly the assessment of the nature of the conspiracy. It is important to note that the Crown does not argue, indeed it accepts it could not argue, that the evidence is admissible pursuant to the co-conspirator's rule. Rather, the Crown submits that the relevance of the resource evidence is principally as to the light it throws on the nature and scope of the conspiracy.

32 The source of this argument appears to be a ruling made in a trial presently being heard in Melbourne. Prior to the commencement of the jury trial, Bongiorno J in R v Benbrika and others, had considered the admissibility of the evidence that one of the defendants had attended an overseas training camp. It was sought to be tendered as against his other co-accused in proof of the charge of being a member of a terrorist organisation. (I will not mention the name of the particular defendant, as the ruling is restricted for publication at this stage). Bongiorno J stated:

“I am satisfied that the fact that X's having received a military training...is relevant whether the Crown proves knowledge of it in other members of the group or not. That military training is a resource for the organisation, the same way as a cache of weapons secretly owned by one of the members would be. The extent of X's training, what he learnt and how long he was there, are all relevant. However, I am also satisfied that relevance is confined to the fact of military training, not why he sought and obtained such training, who ran the training camp or on which side of any armed conflict...any of his co-trainees were being trained to fight. Had he received training at Sandhurst or Duntroon, it would have been just as relevant."

33 (The Crown explained to me that this limitation or restriction of the evidence was due to the fact that the relevant training had occurred prior to 11 September 2001.)

34 The Crown argued that in the present Sydney trial there was a link between the LeT training process in Pakistan and a number of the activities being carried on by the accused during the course of the conspiracy. The Crown argues that this link is not confined to activities such as training, but is a more broadly based one, based on the concept of the nature of jihad and the objects of the alleged conspiracy.

35 Finally, the Crown submitted that, provided appropriate directions were given, the evidence ought not be excluded under s 137 of the Evidence Act.

36 Mr Button's argument examined, once more in considerable detail, the comparison of the 2001 training experience by Kwon and Abu Asad, with the evidence of training, and other evidence, alleged against the accused in carrying out the objects of the conspiracy.

37 Ms Yehia, for Mr Hasan, undertook the same task essentially, but with particular reference to the position of her client. Both Mr Button and Ms Yehia argued that the training evidence could not rationally bear upon the nature and scope of the conspiracy or their clients' alleged participation in it. Moustafa Cheikho did not attend the first New South Wales training camp in 2006, although Mr Hasan had attended both. The submission sought to distinguish Bongiorno J's decision in the Benbrika trial. Secondly, both counsel argued that the training likely to have been undertaken by Abu Asad could not in fact have trained him or equipped him to be used as a resource. Moreover, there was no evidence to suggest that he had, in fact, been used as a resource. Finally, there was no evidence that any of the accused knew about his training and therefore his capacity to be a resource in that sense.

38 Mr Buscombe's submissions focused upon the evidence that is normally led and admitted in a conspiracy charge. This might be said to be, first, evidence showing the existence of the conspiracy and, secondly, evidence showing the participation of each particular accused in the conspiracy; (R v Masters (1992) 26 NSWLR 450 at 460G.)

39 Mr Buscombe argued that the training evidence was neither relevant nor admissible to prove either issue in the case against Mr Baladjam. His client had not attended either of the 2005 training camps. Counsel also submitted that Bongiorno J's decision was clearly distinguishable in the present trial. If, however, his Honour's judgment was not distinguishable, Mr Buscombe argued that the decision was in error; (R v Tripodi (1961) 104 CLR 1.)

40 Mr Buscombe joined in the general defence submission that sought to exclude the evidence on the basis that admission of it would constitute a real danger of unfair prejudice and that it would be likely to be misused by the jury. There was, Mr Buscombe noted, no evidence that Mr Baladjam attended any training camp during the course of the conspiracy; and there was no evidence that Mr Baladjam knew that Moustafa Cheikho had been at a training camp in 2001.

41 Mr Scragg focused upon his client, Mr Jamal. He submitted there was no evidence to suggest that Mr Cheikho had ever imparted the knowledge of his alleged training in Pakistan to Mr Jamal. There was no evidence to suggest that Mr Jamal knew from any other source that Mr Cheikho had participated in an LeT training camp. Further, there was no evidence that Mr Jamal himself participated in any training for violent jihad. Mr Scragg also sought to distinguish the Melbourne ruling and argued that section 137 required the exclusion of the evidence as against his client.

42 Finally, Mr Waterstreet opposed the tender of the evidence against his client, Khaled Cheikho. Mr Waterstreet argued that the decision of the Court of Criminal Appeal in R v Lodhi dwelt upon a secret relationship said to have existed between the appellant and Willie Brigitte. There was no comparable relationship between Moustafa Cheikho and Khaled Cheikho in the present matter. Indeed, Mr Waterstreet said there was no degree of “relationship evidence” in the present matter at all. He focused on the time gap between 2001 and 2004. He likened the evidence of the training in 2001 to uncharged conduct or uncharged criminality and to its being led as "relationship evidence" or "some other breed of evidence relevant to the conspiracy". Secondly, Mr Waterstreet suggested there was no evidence that the alleged resource had ever been available to, or was utilised by his client or by anyone else.

Preliminary observations

43 Before dealing with the determination of questions 1 and 2, it is appropriate that I make three preliminary observations. I do so because this is the first of many anticipated defence applications to exclude evidence proposed to be led at the trial by the Crown. These observations have resonance for the significant number of future applications that will require determination.

44 The first observation, obvious though it is, arises out of the fact that the Court is being asked to make rulings about the admissibility and/or exclusion of evidence in a circumstantial case. The Crown proposes to place before the jury a long and detailed series of circumstances from which the jury will be asked to draw conclusions as to the guilt of the accused beyond reasonable doubt. By way of contrast, I am faced with but one piece of an elaborate overall picture and I am asked to make a ruling about that small piece of evidence, without regard to the whole picture that will be revealed by the evidence to be adduced at trial. Of course, it is true, I have the Crown Case Statement and that is a very helpful document. But the host of applications that await me reveal all too plainly that the defence propose, as they are entitled to do, to whittle away at the Crown case Statement and to seek to have many aspects of it ruled out or excluded.

45 The obvious point I make in this first preliminary observation is that it is difficult to make rulings about one piece of evidence at a point of time when the overall mosaic of the Crown case has not been made plain in its final form.

46 The second point is allied to the first. I am asked to make rulings on the admissibility or exclusion of evidence at a time when I have no clear picture at all of the defence case. There are nine accused and it is quite possible, at least in theory, that there will be nine defence cases. Once again, this makes the task of the Judge in determining preliminary rulings a difficult one. I can assume, indeed I must assume, that at this stage everything is in issue and that the Crown will have to prove each and every aspect of its case beyond reasonable doubt.

47 The third point is the corollary arising from the two points I have already made. It is my task to make rulings about the admissibility of evidence and/or the exclusion of evidence sought to be adduced by the Crown. In some cases, my rulings will be in favour of the Crown. In others, they will be against the Crown. The parties need to bear in mind that these are preliminary rulings only and they may be reviewed at a later stage, if it becomes appropriate to do so. By making this statement, I am not inviting a host of repetitious or needless review applications. Far from it. But they are preliminary rulings only, and that needs to be kept in mind by all parties. These remarks plainly enough, are intended to apply to any rulings I will be called upon to make subsequent to the present one.

Resolution of question 1

48 Is the evidence concerning Abu Asad’s training at the LeT camp in late 2001 admissible? In my opinion, it is. I shall now state my reasons.

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

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

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

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

52 For present purposes, the facts in issue have been identified by the Crown in the following way: The Crown must prove beyond reasonable doubt that Moustafa Cheikho entered into the agreement alleged by the Crown with one or more other persons (physical element); that Moustafa Cheikho did so intentionally (fault element); and that, Moustafa Cheikho and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement (the intention required by s 11.5(b) of the Criminal Code Act 1995). Further, Moustafa Cheikho or at least one other party to the agreement must have committed an overt act pursuant to the agreement. (Section 11.5(c) of Criminal Code Act 1995).

53 The material sought to be adduced by the Crown is, in my view, material which, if it were accepted, could rationally affect the assessment of the probability of the existence of the fault elements and the statutory intention I have identified. Section 55 of the Evidence Act is very broadly stated. It is plainly designed to capture as relevant evidence that, logically and reasonably, has the capacity to bear upon the assessment that the jury, properly instructed, will have to make in the light of the issues at trial. At the outset, it may be said that this capacity appears to exist, even by way of first impression. This is so when one examines the nature of the evidence and the nature of the Crown case. I have earlier set out the broad nature of the Crown case at page 2 of this decision. As I say, even a preliminary reading of the general nature of the Crown’s case would suggest that Moustafa Cheikho’s training at the LeT camp is evidence that could rationally effect the assessment of the probability of both the existence of the physical and fault elements I have identified.

54 Indeed, Mr Button SC did not rail against the likelihood of such a first impression. Rather, he argued that if one were to “drill down” into the true nature of the relevance one might find that the evidence was really being pressed as a kind of character or tendency evidence. I am unable, after careful consideration, to agree with that submission.

55 Both the Crown and Mr Button trod, to some degree, a similar path in analysing the likely evidence. Mr Button, for example, said that the evidence of training at the LeT camp, as described by Kwon, was specific to the conflict for which the trainees were being prepared, that is, the conflict over Kashmir. He argued that the training encompassed physical training as well as instructions in firearms, camouflage, the use of walkie talkies, marching, roping and repelling etc, ambush tactics and recognizance. There was no evidence, Mr Button said, that the trainees received formal lessons or training in the pursuit of jihad in an urban context. Senior counsel argued that there was no nexus between the Pakistan training and the issues in the trial or that, if there were, it was a very weak nexus.

56 Part of the Crown argument was designed to examine the evidence to show that there were, in fact, connections or similarities between the type of training undertaken in Pakistan and the activities of the alleged conspirators during the course of the conspiracy. It is clear that both Mr Button and the Crown are able to point to material favouring their respective positions in this regard. Once again, however, I consider that the resolution of such matters of detail will be, in the ultimate, a task for the jury.

57 The more cogent and persuasive part of the Crown’s submission, in my view, is the argument that the general nature of the Pakistani training, as given in evidence by Mr Kwon, shows that it extended well beyond mere military training. It involved, I accept, a wider range of physical, mental and spiritual training for jihad in the broader sense. Once that be accepted, it is plain to see that the evidence of training in the LeT camp may be brought to bear on the assessment of the facts in issue in the present trial.

58 This is likely to be so particularly in relation to, for example, Moustafa Cheikho’s defence. There are a considerable number of matters directly asserted in the Crown Case Statement against him as being aspects of the evidence that would be likely to show his entry into the alleged agreement and upon his acting in furtherance of the conspiracy. There are of course, many other matters in the evidence relating to the actions of his co-conspirators which are, at least in a contingent sense, likely to be admissible against him.

59 Let me focus on some aspects of the Crown case that is to be directly placed against Moustafa Cheikho. This is not intended, by any means, to be a summary of all the material alleged against him. It is merely selective. First, there is the material that was found in his possession after the execution of a search warrant on 8 November 2005. Items from the search included a black bum bag located under a pillow in the main bedroom. This contained a semi-automatic pistol with a bullet in the chamber and a full magazine. There was a Beretta semi-automatic pistol loaded with magazine and bullet in the chamber. The serial numbers from both pistols had been obliterated. The bag also contained other ammunition. Also located was a tool box which included a number of small light bulbs, battery clips, batteries, power sources and the leads and screwdrivers and other tools. (One of the other conspirators had a CD in his possession in June 2005 which had Moustafa Cheikho’s fingerprints on the cover. This included instructions for the manufacture of detonators involving the use of small light bulbs).

60 There was also a document found which showed a diagram of an electrical circuit involving a mobile telephone and explosive material. There was a book dealing with “The Layman’s Guide to Electronic Eavesdropping”, four bottle of Hydrogen Peroxide and a box containing walkie talkies. There were also various books discussing jihad, terrorism and extremist Islamist positions. There was other extremist material located on his computer.

61 Secondly, Moustafa Cheikho had been detected making a number of telephone calls in which there were extremist remarks made by him. For example, in one conversation made on 24 October 2004, Moustafa Cheikho was speaking to another male person while they were watching videos/internet. At one stage he said: -

“You know if they’re training…and you die while you are training, you die a martyr”.

62 And later he said: -

“Good good…God willing next week when they capture these Australians they can chop their heads off”.

63 There were other conversations both on 14 November and 20 November 2004 in which the death of political leaders were discussed including George Bush, Condaleesa Rice and John Howard. Another example occurs on 13 July 2005 when Moustafa Cheikho discussed, with approval, the London bombings which had occurred during that month. There are a number of other examples.

64 Thirdly, the Crown case alleges that Moustafa Cheikho had a connection with the two training camps, the first being at Curranyalpa between 16 and 18 March 2005; the second being at Mulga Creek Station between 12 and 14 April 2005. The Crown case is that each of these camps represented a form of unsophisticated training for jihad. In relation to the first, the Crown case contains evidence that a false name used by Moustafa Cheikho was used to make the booking. In relation to the second camp, Moustafa Cheikho was in attendance at it.

65 Finally, evidence in the Crown case suggests that Moustafa Cheikho carried out a number of particular activities directly in furtherance of the alleged conspiracy. For example, on 9 June 2005, it is said that Moustafa Cheikho, using a false name, ordered 24 bottles of hydrogen peroxide solution from a Soul Pattinson Pharmacy in Menai and later collected the order. The same number of bottles and brand of bottles of hydrogen peroxide, still located in their packaging, were found on 18 August 2005 on public land directly at the rear of Mr Sharrouf’s premises. (The Crown case suggests that other of the accused were involved in similar purchases later in the conspiracy Baladjam and Hasan, for example, were also involved in the purchase or attempted purchase of hydrogen peroxide on a number of occasions). Moustafa Cheikho was also involved in hiring a metal detector on 28 October 2005. In addition, he was one of a group of the conspirators who was allegedly involved in the purchase of aluminium foil installation tape on 3 November 2005.

66 It is likely that the Moustafa Cheikho’s case, in relation to many of these examples I have given, will be that they are all entirely innocent matters and do not carry with them any sinister connotation. I imagine that the defence case will be that the extremist and instructional material found at Moustafa Cheikho’s home reflects no more than an genuine interest in world affairs, and particularly the worldwide problems facing Muslims. I am not certain what the defence case will be in relation to the weapons and ammunition found. But again it may be suggested, I imagine, that nothing sinister should be read into their possession; or that perhaps they were not his. As far as the telephone calls and the other activities are concerned, again, the defence case is likely to be that the Crown case represents an unfair over reaction to a range of perfectly innocent and explicable situations.

67 Against that background, it can be plainly seen that the evidence of the Pakistan training, if it be accepted for the moment that Moustafa Cheikho was the man Abu Asad, has the capacity to bear upon the assessment the jury will have to make, in the light of the Crown case and the defence position, on the fundamental issues in the trial. For that reason, the evidence will be neither evidence as to bad character, nor will it be tendency evidence.

68 I quite agree with Mr Button SC that one has to take great care that evidence is not misused. It should however, be a relatively easy matter to fashion directions that will make sure that the jury do not misuse the evidence in the way outlined in Mr Button’s written submissions. I would expect considerable assistance from senior counsel in relation to the formulation of such directions, as I would expect assistance of an equally helpful kind from the Crown in that regard.

69 It follows, in my view, that the evidence sought to be adduced has a reasonably high probative value. I do not accept that it is, as was argued, profoundly prejudicial or, for that matter, prejudicial unfairly, other than in the sense that, if accepted, it may be relevant to and support the Crown in its case and be destructive of the defence position. Whether it will be so will be a matter for the jury, properly instructed, to determine.

70 In the same way, I do not accept that evidence that a person was deliberately training at the LeT camp is itself material that carries with it any greater prejudice in a general sense, than do the actions which are directly alleged against Moustafa Cheikho, including his possession of extremist and instructional material. I suppose it is inevitable that a jury’s immediate reaction to the charge contained in the indictment will be one of displeasure. But in relation to Moustafa Cheikho, the jury will be instructed that they must be satisfied beyond reasonable doubt about the proof of the essential elements involved in the conspiracy charge in the Crown case. The evidence against him will be identified. The jury will be instructed to bring no bias or prejudice to the case. They will understand the presumption of innocence. And they will be instructed about all these matters against the background of a fair statement of the defence case as it is put at trial.

71 Indeed, the evidence of Kwon as to the nature of the training does not seem to me to equate to the colourful horror story painted by counsel in their various submissions. Nothing of a gruesome or unusually frightening nature happened at the training. The picture is indeed quite bland, even when compared to incidents commonly seen on television and in the media when terrorist training is depicted or discussed. The evidence is not likely, in my view, to arouse prejudice of an unfair kind.

72 I am not satisfied that the Court should exclude the evidence under s 137 of the Evidence Act. In my opinion, the probative value of the evidence is not out weighed by the danger of unfair prejudice to the accused. Indeed, as I think I have made clear, I am of the view that, if the jury is appropriately directed, there will be no unfair prejudice to the accused at all.

Question 2 - Should the identification evidence be excluded under s 137

73 Mr Button submitted that the identification evidence should be excluded. The first argument related to the witness Kwon. It was he who had purported to identify the man Abu Asad from an array of photographs shown to him by Springer, a man from an Australian organisation. This happened on 26 November 2003,

74 In general terms, Mr Button SC raised a series of significant issues about the credibility and reliability of Mr Kwon. Secondly, Mr Button made submissions about the identification process itself. It was against the background of these two submissions that unfair prejudice was said to arise.

75 There is no need for me to identify at this stage each and every matter relied upon by Mr Button in relation to the credit and reliability of Kwon’s evidence. This is because recent binding authority makes it clear that these are issues for the jury rather than for the Judge who is confronted by an exclusion application. I am bound by the authorities mentioned in para 27 of this decision. The matters which Mr Button raised are matters which may be argued before the jury and it will be a matter for the jury, appropriately directed, to determine those issues. That was the view I took in R v Lodhi [2006] NSWSC 641. This approach was confirmed by the Court of Criminal Appeal in R v Lodhi at 174-177.

76 Mr Button endeavoured to draw a distinction between issues of credit and reliability. In this regard he made reference to a passage in Barr J’s decision in R v Lodhi at para 174. There his Honour had said: -

“But it was not open to extend that legitimate criticism by eliding about questions of Kwon’s creditability. The attempt to do so was made in the face of the Court’s judgment in Regina v Shamouil”.

77 Mr Button suggested that perhaps Barr J was leaving open the ability, in carrying out the probative/prejudicial exercise, to call in question the reliability of the evidence, as opposed to the credibility of the witness giving that evidence.

78 I do not regard anything said in para 174 by Barr J as undermining the general proposition established by the authorities that I have earlier identified. This is the proposition that it is not open to a judge in assessing the probative value of any piece of evidence to take into account an evaluation of the reliability or credibility of the witness who gives the evidence. I accept this proposition as the law I must apply. Mr Button has argued that one consequence of this is that s 137 has, as a consequence, less to do than might be thought desirable in an exclusion process relating to identification. Mr Button gave the examples of an identification by a very young person; or perhaps an identification that occurs many years later than the time when the witness encountered the person identified. All this is true. But, on the other hand, the jury is the tribunal of fact and it is easy to see why issues such as reliability and credibility are really the province of the jury in the particular context under discussion. In any event, as I have said, I am bound by those authorities and I do not consider that there is any room for manoeuvre, as has been suggested, in the present matter.

79 Mr Button’s submissions then addressed the array itself. Senior counsel drew attention to the evidence of Agent Ammerman at committal. The witness had said that, as best he could recall, Kwon had stated that the man was “stocky with a goatee and spoke with an Australian accent”. In view of this evidence, Mr Button made the point that the array was a most imperfect process. Some of the people in the photograph shown to Kwon were not “stocky”. Indeed, there were some who wearing glasses. This is not a characteristic ever attributed to Abu Asad. If the Court felt unable to take these matters into account (or for that matter the other criticisms relied upon by Mr Button), senior counsel nevertheless argued that the extrinsic probative value of the identification evidence was quite low in any event for the reasons identified in the submissions raised in relation to the first question. Additionally, the meeting between Kwon and Abu Asad had occurred a considerable time before the conspiracy and, in any event, the Crown has a broad range of other evidence which it asserts demonstrate an interest on the part of Moustafa Cheikho in violent jihad and military type training.

80 Against the background of these submissions, there was a later reference in the argument to a decision of the Court of Criminal Appeal in 2000. This was the appeal of J. D. Blick [2000] 111 A Crim R 26. In that case, a victim of an armed robbery had described the offender as having a goatee beard. Before the accused was arrested, the victim had been shown 12 photographs which included one of the accused. This photograph was the only one that showed a man with a goatee beard. The trial judge refused to reject evidence of identification under s 137 of the Evidence Act and ruled that the evidence should be admitted.

81 The decision of the Court was given by Sheller JA with whom James and Dowd JJ agreed. The case is often cited for its useful discussion pointing out that the exercise performed under s 137 of the Evidence Act is not, in truth, an exercise of residual discretion. Sheller JA said that if the probative value of evidence adduced by the prosecutor were outweighed by the danger of unfair prejudice to the defendant, the evidence must be rejected. This is a view that is now generally accepted and applied. One of the main points argued, however, was that the Judge should have rejected the photographic identification of the appellant because the bundle of photographs shown to the witness contained a photograph of only one person with a goatee and that person was the appellant. Sheller JA said: -

“I do not see how it could be said that an identification obtained by such a process was of great probative value. At the same time it results in unfair prejudice to the appellant. But it was not the probative weight of the evidence which gave rise to the prejudice…the prejudice to the appellant remained high although the method of obtaining the identification evidence greatly diminished its probative value. There lay its unfairness”.

82 Sheller JA went on to say that showing the witness a group of photographs in which only one was of a man with a goatee beard was “little better than showing only one photograph, namely the photograph of the appellant”. Consequently, his Honour thought that the trial judge should have rejected the identification evidence.

83 It must be said that the facts in Blick’s case represented an extreme example of an unfair array. There was, of course, a considerable body of circumstantial evidence in the case, the presence of which may have explained why the trial judge refused to reject the identification evidence. Nothing in the array process in that case, in my view, equates to the situation demonstrated in this trial by the array of photographs presented to Mr Kwon. I should, I think, say no more about the decision than that. Blick’s case does allow for the proposition that, in an extreme case, there may be residual scope for rejecting the array on a preliminary basis. But this is not such a case. When the matter comes before the jury, I have no doubt that appropriate directions will be given and they will, no doubt, include matters going to the nature of the array. As to the remaining aspects of asserted unfair prejudice, I consider that the giving of appropriate directions will alert the jury to the general danger of over emphasis of evidence of this kind. Such directions will also focus on the particular matters that may emerge from the evidence given by Kwon and other people. So it is with the suggestion that the subject matter, namely, training in Pakistan near to the Afghanistan border, brings with it its own area of prejudice. The same remarks apply to the final submission regarding the possession by the organisation of the photographs. I see no reason why a suitable direction cannot be fashioned to deal with any possible unfair prejudice that might arise in these ways.

84 I conclude that, if the evidence of identification be accepted, it has a reasonably high probative value. I do not consider that there is any real risk of unfair prejudice to Moustafa Cheikho by reason of the admission of the evidence, provided, as I say, that appropriate and suitable directions are given.

85 For these reasons, I conclude that the evidence may be admitted against Moustafa Cheikho at trial.

Question 3 – Should the evidence be excluded against all accused (the argument that Moustafa Cheikho was a resource to the conspiracy)

86 I have earlier set out a summary of the submissions made by counsel in relation to this question. Both Mr Button SC and Ms Yehia made a detailed comparison between the training Kwon received at the LeT camp in 2001 and the activities of the two groups involved in the New South Wales camping trips in 2005. The point of this comparison, and other comparisons made in argument, was to provide a foundation for the submission that the Pakistan training received by Abu Asad, assuming it to have been similar to Kwon’s training, was in no way similar to any training or any activities of the accused in the period between May 2004 and November 2005. For example, it was said there was no evidence that the Pakistan training involved the manufacture or use of IED’s, or that trainees were prepared for urban terrorism. Comparisons were made between preparation for guerrilla warfare on the one hand, and shooting or camping trips in the Australian bush, on the other.

87 The Crown did not accept the validity of these comparisons. It pointed to a wide range of material and items found in the accused’s possession, and to the material on the computers etc. The Crown made an equally detailed analysis and suggested that there was, in fact, a similarity or cross-over between the LeT training and the actions of all the accused from time to time.

88 In my opinion, the third question can, however, be more readily determined without finally resolving the issues arising from the detailed comparison. Although I have found these comparisons useful, there are, as I said earlier, points to be made on both sides. The final position, based on this argument, is not clear cut. The ultimate determination, however, focuses upon this question – is the evidence in the trial generally capable of showing that Moustafa Cheikho’s alleged training in Pakistan was a resource he brought to the conspiracy? This is, as it were, the central question on this point.

89 The answer to this question must be, in my opinion, that it is not capable of establishing the position argued for by the Crown. Let me say, at the outset, that I accept entirely that, in a given factual situation relating to a conspiracy, there may be evidence to support the proposition that the training and expertise of a particular individual, even though it may have occurred many years before the formation of the conspiracy, has been deliberately brought to that conspiracy as a resource. One has only to contemplate the example of a conspiracy to plan the detonation of a nuclear explosion in an urban situation, where one of the conspirators is alleged to be a scientist with specific training and capacity in the area of nuclear science. For evidence of the training of that individual to be admissible as a resource brought to the conspiracy, there would need to be evidence that the training was necessary for the conspiracy; perhaps that the training was known at least to one, or to more than one, of the conspirators; and that the resource was plainly intended to be used in furtherance of the conspiracy. This would be so even if the conspiracy were to be halted before the actual event took place.

90 My examination of the Crown Case Statement, and the evidence likely to be adduced, taken at its highest, leads me to conclude the material in the Crown case does not reach an appropriate level so as to meet these criteria. In particular, there does not appear to be any evidence to suggest that Moustafa Cheikho’s experience and expertise, such as it may have been, was in fact used or relied upon throughout the period of the alleged conspiracy. There is no direct evidence to suggest that any of the conspirators knew of, or adverted to, Moustafa Cheikho’s alleged training in Pakistan in 2001. True it is that his fellow accused would have been unlikely to have been ignorant of his earlier training but there is, as I have said, no direct evidence of such knowledge. Finally, it does not appear that his training at the LeT camp, if that in fact occurred, was necessary, in any real sense, for any aspect of the furtherance of the conspiracy. Many of the accused, according to the Crown case, possessed instructional material that would have been of far greater use and practical application than anything Moustafa Cheikho had to offer. In addition, many of the accused, according to the Crown case, possessed religious and extremist material. This too would have motivated their actions far more readily than anything Moustafa Cheikho had to offer.

91 I consider that the position in this trial can be plainly distinguished from the Melbourne trial (R v Benbrika) in a number of obvious respects. First, the charge there was a significantly different one from the present conspiracy charge. Secondly, the evidence sought to be relied upon was of a fundamentally different nature, although admittedly it involved training. For example, the person who had undergone training in Afghanistan had been asked whether or not he was prepared to become a suicide bomber. Thirdly, although it is not clear from the decision, it appears that the basis of admission of the evidence was that the Afghanistan experience “gave him credentials and made him attractive to Benbrika and the other brothers to have as a member of the organisation”. This denotes knowledge on the part of Benbrika and the others as to the fact of training and its details. There may be other points of distinction as well. It is unnecessary to pursue these in the light of the clear view I have come to that Bongiorno J’s ruling is not applicable to the situation with which I am dealing.

92 The Crown argued that support for its position was to be found in my own decision in R v Lodhi [2006] NSWSC 461 at [24]. In that case an issue arose as to the admissibility of evidence of the association between one Willie Brigette and the appellant in proof of the fault elements of a range of offences contrary to s 101 of the Criminal Code with which the appellant had been charged. That aspect of my decision was upheld by the Court of Criminal Appeal in R v Lodhi [2007] NSWCCA 360 at 131. The relevant passage is as follows: -

“It seems to me that his Honour’s conclusion was correct. The evidence objected to was more than mere association. The knowledge and intent of the appellant in collecting documents or seeking information or possessing the documents specified in the fourth count was to be judged from all the surrounding circumstances. Those circumstances included that he was at all times in frequent and secret communication with a terrorist trained in Pakistan…it seems to me that the evidence was capable of establishing that the appellant had a secret relationship with Brigette during the time immediately before he committed the acts on which the charges were based. Proof of the relationship explained why he engaged in a series of acts none of which was on its face necessarily one of criminal intent”.

93 The position in the present matter is, to my mind, quite different. It is not the situation that there was a “secret relationship” between Moustafa Cheikho and the other conspirators shortly before the time of the coming into existence of the conspiracy, throughout its term, or at any time. It was the secrecy of the relationship between Brigette and Lodhi in that case that underlined the admissibility of the evidence. That would have been the situation even if the evidence had shown that Brigette was directly involved in the acts of the appellant. The point at issue was whether, in a situation where Brigette had no direct involvement in the carrying out of the prohibited acts, evidence of that secret relationship had continued to underscore the admissibility of Brigette’s secret training in Pakistan so as to make it admissible against the appellant.

94 In this trial, Moustafa Cheikho is alleged to have been one of the conspirators present throughout the whole duration of the conspiracy and involved at all times in participating in it in furtherance of its objects. The relationship between Moustafa Cheikho and the other conspirators, by way of contrast with the Lodhi situation, was a completely open one, as between themselves. There is no direct evidence, at this stage, that those other conspirators knew of the earlier training. More importantly, there is no evidence that the training was relied on throughout the conspiracy, and there is no evidence that there was any need to rely on it throughout the conspiracy. I cannot see, at this stage, that the suggested use of Moustafa Cheikho as a resource, has been established by the evidence presently available.

95 For these reasons, I do not consider that the subject evidence is capable of demonstrating, in the circumstances of this case, that Moustafa Cheikho’s alleged training in Pakistan was a resource he brought to the conspiracy so as to make it admissible against the other accused on that basis.

96 I should make it clear that in reaching this conclusion, I do not entirely agree with a number of the submissions raised by defence counsel. I will mention only three of the areas where I do not accept the submissions made.

97 First, in relation to submissions made by Mr Scragg on behalf of the accused Jamal, I do not accept the general proposition that the absence by a particular co-conspirator of knowledge that an individual joined the conspiracy to provide a resource based on his expertise or experience results in that fact being inadmissible against the co-conspirator. One can readily think of a situation where a particular conspirator joins the conspiracy to provide a resource based on his experience and where, for reasons of secrecy, that expertise is kept concealed from the other conspirators, or a number of them. It is in the nature of a conspiracy that it will often be shrouded in great secrecy, even as between individual conspirators. Although the suggested absence of evidence that Jamal and others knew of Moustafa Cheikho’s training in Pakistan is a material factor in the decision I have reached, it is not the compelling factor. It is the combination of the factors that I have identified in the present matter, and the absence of evidence in the relation to all of those matters, that leads to my decision to find that the evidence is not admissible at this stage against the co-conspirators.

98 Mr Buscombe’s submissions I have found helpful and acceptable in general terms. In particular, I have read carefully the decision of Street CJ in Rex v Gunn & Howden [1930] 30 SR at 336. Mr Buscombe placed considerable reliance on this decision. In that case, Gunn and Howden were charged with conspiring to defraud people by making false representations as an inducement to take shares in a certain company. The company had been formed in 1925 by Gunn. At that time, he had complete control and was the only person interested in its profits. Later in that year, a written agreement was made between Gunn and the company by which Gunn was appointed General Director at a large salary and with a provision which rendered him practically irremovable. In 1927 it was decided to increase the capital of the company and to invite members of the public to become shareholders. Howden became the company’s share salesman and, later, organising manager and a director. There was evidence that the two men had been acting in combination to sell shares, and there was also evidence of many misleading statements in a prospectus and other documents. The issue on appeal was whether the trial judge should have left the 1925 agreement before the jury, it also being alleged by the Crown that Gunn had deliberately concealed the existence of that document. At pages 342 and 343 Street CJ stated that the agreement should not have been admitted in evidence against either of the accused. At 343, Street CJ stated: -

“I do not think however that the agreement made by Gunn in 1925 should have been admitted in evidence. In its inception it could have had nothing whatever to do with the conspiracy sought to be established by the Crown. It was made for another purpose altogether, at a time when Gunn was practically sole owner, and before Howden had any association of any kind with the company so far as appears upon the evidence. Howden never knew of it, and even if the jury could have come to the conclusion on the evidence that Gunn was deliberately concealing it (though I think this is open to considerable doubt), I cannot see how the concealment of a document brought into existence for another purpose, before the public was approached to buy shares, and before there was any association between Howden and Gunn, and of the existence of which Howden was ignorant, could be used for the purpose of establishing a common design”.

99 Mr Buscombe made much capital of the fact that the Pakistan training sought to be relied upon the Crown occurred nearly two and half years before the formation of the conspiracy as alleged by the Crown. The passage I have cited from Rex v Gunn & Howden makes it clear, however, that that case turned essentially upon its own facts. I do not think that it is authority for the general proposition that an event in the past involving one conspirator could never be brought to account as evidence in a subsequent conspiracy. It is possible to think of many illustrations where the evidence would, or might become admissible. In the present case, however, for the reasons I have stated, I am satisfied that the evidence of the Pakistan training is not, at least so far as I understand the evidence at this stage, admissible against the other conspirators. In theory, it might become so, or possibly so, depending upon the issues that may be brought forward by the defence in the trial.

100 The third submission to which I wish to make brief reference was one made by Mr Waterstreet. I do not see any real comparison between the issue of relationship evidence arising, for example, in a murder trial and the situation of the evidence sought to be relied upon here by the Crown. If the Crown could point to evidence which showed that Moustafa Cheikho’s training was in fact being used as a resource in the conspiracy, even if that were not known to a number of individual co-conspirators, then it would in my opinion be capable of admission as evidence. It is the apparent absence of such evidence, I repeat, that leads to my ruling.

101 Because of the view I have reached in relation to the admissibility of the evidence, it is not necessary to consider s 137 of the Evidence Act. My general impression, however, is that if the evidence had been admissible, then subject to the giving of appropriate directions to the jury, I would not have assessed it as unfairly prejudicial evidence.

102 I propose to admit the evidence of LeT training and the identification evidence against Moustafa Cheikho. At this stage, the evidence is not to be admitted against the other accused.

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