Regina (C'Wealth) v Elomar [No 12] - [2009] NSWSC 448

No judgment structure available for this case.

CITATION: Regina (C'Wealth) v Elomar & Ors [No 12] [2009] NSWSC 448

HEARING DATE(S): 06/03/09

JUDGMENT DATE :
6 March 2009

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Application to discharge the jury is refused.

CATCHWORDS: CRIMINAL LAW - Application for discharge of jury - Impact of extensive publicity in another trial - Propensity for interstate publicity to prejudice New South Wales proceedings

LEGISLATION CITED: Crimes Act 1914 (Cth)
Crimes Act 1958 (Vic)
Evidence Act 1995 (NSW)

CASES CITED: Dietrich v The Queen (1992) 177 C293, 362 per Gaudron J
John Fairfax Publications pty Ltd v District Court of NSW [2004] 61 NSWLR 344
Re K (2002) NSWCCA 374 at (9) (10) per Beazley JA, Sully and Simpson JJ
R v Baladjam [No 19] 28 May 2008
R v Baladjam [N0 59] 10 November 2008
R v Glennon (1992) 173 CLR 592 and 632
R v Petroulias [No 19] BC 200711115 at (40)
R v Sheikh 144 A Crim R 124
R v Elomar [No 6] 16 December 2008 at (28-35)
Trimboli v Onley [No 3] (1981) 56 FLR 321
Tye v Commissioner of Police (1995) 84 A Crim R 147 per Studdert J

PARTIES: Regina (C'Wealth) v Mohamed Ali ELOMAR [12]
Regina (C'Wealth) v Abdul Rakib HASAN
Regina (C'Wealth) v Khaled CHEIKHO
Regina (C'Wealth) v Moustafa CHEIKHO
Regina (C'Wealth) v Mohammed Omar JAMAL

FILE NUMBER(S): SC 2007/2399001; 2007/2400001; 2007/2395001; 2007/2398001; 2007/2452001

COUNSEL: R Maidment SC; G Bellew SC; C O'Donnell; S McNaughton - Crown
D Dalton SC; E Ozen - Accused Elomar
D Yehia; S Beckett - Accused Hasan
C Waterstreet; P Lange - Accused K Cheikho
R Button SC; I Nash - Accused M Cheikho
G Scragg; D Carroll - Accused Jamal

SOLICITORS: C'Wealth DPP - Crown
Nyman Gibson Stewart - Accused Elomar
Legal Aid Commission - Accused Hasan
Lawyers Corporation Ltd - Accused K Cheikho
William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho
Michael Doughty Solicitors - Accused Jamal

- 1 -

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

WHEALY J

PARRAMATTA: FRIDAY 6 March 2009

2007/2399001 - Regina v Mohamed Ali ELOMAR [No 12]
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2452001 - Regina v Mohammed Omar JAMAL

JUDGMENT - On application by all accused for a discharge of the jury

1 HIS HONOUR: This is an application brought on behalf of all accused seeking a discharge of the jury. This is the second time during the trial a discharge has been sought, although it must be said the earlier application was based on different grounds than is the present one. Commencement of the jury empanelment began in late October 2008. This means, in practical terms, that the trial is now well into its fifth month and the present estimate is that there are another four, or perhaps five months, left to run.

2 The discharge application is sought because of the media publicity given to the sentencing of a number of men in Melbourne on Tuesday, 3 February 2009. On that day Bongiorno J, in the Supreme Court of Victoria, sentenced Abdul Nacer Benbrika and a number of other men to lengthy sentences in respect of their convictions for terrorism related offences committed in Victoria.

3 The accused in the present trial are five men who have been each charged with an offence of conspiring with each other to do acts in preparation for a terrorist act or acts. This indictment was presented in late October 2008. There had been an earlier indictment charging nine men with a similar offence but, for reasons not necessary to mention here, four of those men are not on trial in the present proceedings. Hence the need for a fresh indictment in October 2008.

4 Between February and October 2008 the Court was involved in an extensive series of pre-trial applications concerning the anticipated trial of the nine men on the original indictment. These decisions remain of relevance for the trial of the remaining five men the subject of the October 2008 indictment. The offence with which each man is charged is a serious offence, carrying with it a maximum penalty of imprisonment for life.

The nature of the Crown case

5 The accused are five of nine men who are said by the prosecution to be parties to the conspiracy involved in the charge contained in the indictment. The following summary of the Crown allegations is taken from the Crown Case Statement The prosecution case is that each of the conspirators considers himself to be a devout Muslim; each held certain beliefs in common relating to their interpretation of the Muslim faith. These common beliefs included the following: -

(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 fundamentalist beliefs).

6 These views are evidenced by, amongst other things, the finding of a large volume of material supporting such views (“extremist material”) at the premises of each accused upon the execution of search warrants. That extremist material was found in the form of electronic media including videos, DVDs, CDs and material from websites downloaded and saved on each of the accused’s computer or computers.

7 In accordance with the holding of those common beliefs, the accused entered into an agreement to obtain the capacity or capability to prepare for a terrorist act (or terrorist acts). This involved equipping themselves with the knowledge, ability and means to prepare for or plan a terrorist act (or terrorist acts). In furtherance of the agreement the accused amongst other things:

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

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

8 In undertaking their activities the accused became aware that they were being monitored by the authorities. This investigative activity by the authorities included physical and electronic surveillance, interviews and search warrants conducted on the premises relating to various accused before they were arrested. Despite this awareness, each of the accused continued with their activities in relation to the offence. In undertaking these activities, the accused displayed a high level of planning to avoid detection. For example, some of the covert means which the accused utilised included the following:

(a) acquiring and using mobile telephones in false names (these telephones were used, for example, to make enquiries and purchases relevant to the conspiracy and to organise meetings);

(b) using coded SMS messages (with mobile telephones in false names) to arrange covert meetings and to pass messages to each other;

(c) using false names when making enquiries about purchases and purchasing items;

(d) using false names to book camping trips;

(e) using techniques to avoid physical monitoring (“anti-surveillance”) and/or techniques to detect physical monitoring (“counter-surveillance”);

(f) using public telephones (in circumstances where the accused were known to be in possession of mobile telephones);

(g) using electronic equipment to check whether they were the subject of electronic monitoring.

9 In particular, the accused used techniques to avoid and/or detect monitoring by the authorities during the weeks leading up to the arrests in early November 2005. During this period, certain of the accused arranged covert meetings in public places using coded text messages from mobile telephones subscribed in false names. These arrangements included meetings to be held during the early hours of the morning. The accused engaged in anti-surveillance and/or counter-surveillance before these meetings took place. On a number of occasions, these meetings were cancelled by the accused when they discovered that they were under surveillance.

10 Abdul Nacer BENBRIKA (“BENBRIKA”) was an Islamist who had publicly declared his support for militant or violent Jihad. Members of the BENBRIKA group included Izzydeen ATIK (“ATIK”) Aimen JOUD (“JOUD”), Ahmad RAAD (“RAAD”) and Fadi SAYADI (“SAYADI”). BENBRIKA, JOUD, RAAD, ATIK and SAYADI communicated with certain of the accused in Sydney. This contact was often covert in nature, involving the use of covert and public telephones. BENBRIKA and JOUD maintained a degree of contact with HASAN, ELOMAR, SHARROUF, Moustafa CHEIKHO, Khaled CHEIKHO and JAMAL. BENBRIKA travelled from Melbourne to Sydney and met some of the accused on those occasions.

11 The following are some examples of the nature of the instructional material alleged by the Crown to have been held by the accused and the others named in the indictment:

12 On 8 July 2004, a computer, which was located at the premises of Khaled CHEIKHO, accessed and downloaded from a website 3 documents in Arabic, as follows:

(a) a 1 page document showing Osama Bin LADEN and containing links to “military lessons, Jihad websites, Jihad chat rooms, scholars of Jihad and news”;

(b) a 1 page document containing “a few advices” inciting Muslims to engage in Jihad; and

(c) a 12 page document in Arabic containing instructions on various types of explosives (including the speed, force, ferocity and sensitivity of explosives), how to construct a detonator and manufacture improvised explosives from commonly available products.

13 On 27 June 2005, during the execution of a search warrant upon ELOMAR’S vehicle and premises, the authorities seized 4 boxes of compressed hexamine and a USB memory stick which contained a 60 page document in Arabic entitled “The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two”. The document is in the form of a series of written lessons, accompanied by photographic illustrations of matters relating to the text and contains a session in the form of “Questions and answers”. The document contains step-by-step instructions on the manufacture of a series of chemical mixtures/specific explosives and detonating devices. It includes details and advice on: how to source ingredients or precursors, on chemical properties, on how to extract, prepare, store, dispose of and use the explosives described. It provides alternate ingredients and advises how these may be sourced from non-laboratory/scientific sources, such as chemist shops. The document outlines information about car bombs, with reference to “the Riyadh explosions” and “explosions in Bagdad”, and includes material from “one of the Jihadist Encyclopaedias” concerning placement of explosive devices and selection of targets for car bombs.

14 The Crown will maintain that the document is directed to a terrorist audience. For example, the writer asks:

“What exactly are you thinking of: an embassy a complex, terrorising? State what is your mind and hopefully I will try to answer it. As for now I am giving a general illustration as the specified target determines everything from directing the detonators to the amount required…”.

15 The document contains instructions for the manufacture of Tri-Acetone Tri-Peroxide (“TATP”) using various commercially available items, including hydrogen peroxide, sulphuric acid and acetone. The instructions and images relating to the manufacture of TATP found in this document were consistent with items obtained, or attempted to be obtained, by the accused. The process of manufacturing TATP requires various chemicals to be cooled continuously while mixing. TATP must also be kept cool after manufacture. By relying on the recipe contained in the “The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two” and only using the chemicals and equipment sourced (or attempted to be sourced) by the accused, TATP could be manufactured.

16 On 27 June 2005 also located during the execution of the search warrant on ELOMAR’S premises was a CD containing a 1,064-page document in Arabic. Moustafa CHEIKHO’s fingerprints were on the CD cover. The document is entitled “Security and Intelligence”. The document contains chapters including, “Security and Islam”, “Sabotage and Counter Espionage”, “Surveillance”, “Audio and Visual Taping”, “The Hierarchy of the Security Department of a Jihad Organisation”, “Secret Communication”, “Topography” and “The Primary Rules of Sabotage”. Again this document contains instructions relating to the manufacture and detonating of various improvised explosive devices. As with the previous document, it contains step-by-step instructions on how to manufacture explosives from commercially available products, with details and advice on how to source the ingredients, extract and prepare them for use. The requirements specify the use of beakers, thermometers, pipettes, etc. One of the types of explosive devices in these instructions is TATP. This document also provides instructions on how to manufacture Hexamethylene triperoxide diamine (“HMTD”) using various commercially available items including hexamine, hydrogen peroxide and citric acid.

17 Both TATP and HMTD are highly sensitive explosives, which are relatively simple to manufacture, and specialist equipment, knowledge or experience is not required to do so. Following the instructions provided in these documents a person is capable of manufacturing both TATP and HMTD. Both TATP and HMTD could be manufactured using only the chemicals and equipment obtained or attempted to be obtained by the accused.

18 On 27 July 2005 and on 12 August 2005, ELOMAR’S niece Oula AWAD asked the authorities to return various items, including the USB drive (the item containing The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two). She said: “...and I really importantly need that memory card, I really need it, there is like um, my uncle has got stuff on it, drawing and that he has to submit it to people, that’s work for him”. The USB drive (which still contained The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two) was returned to ELOMAR on 19 August 2005. Upon the execution of a further search warrant at ELOMAR’S premises on 8 November 2005, the USB drive was seized again. Analysis of the USB drive showed that The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two had been removed on 19 August 2005. This was the only item deleted from the USB drive.

19 The Crown will rely upon the opinion of a Forensic Chemist that:

(a) the type of explosives capable of being produced from the chemicals obtained, or attempted to be obtained, by the accused fall into the category of “ primary high explosives ”;

20 The above documents are but a few illustrations of a very large number of instructions/documents/manuals, which were located in the possession of the accused. Such instructional material covered topics, which included the production and use of explosives, firearms and covert methods to thwart detection by the authorities, and dealing with the authorities in the event of detection or arrest. Where such instructional material was found on an accused’s computer or computers, invariably material of an extremist nature was also found on that computer or computers. Other examples of such instructional material include the following:

(a) A document showing a diagram of an electrical circuit involving a mobile phone and explosive material was found on Moustafa CHEIKHO’S computer. This document was obtained through a Jihadi forum website which invites the reader to have a look at a way to explode objects by using an Ohmmeter and a mobile telephone.

(b) A document providing specific instructions on how to make the following explosive devices: Molotov cocktails, eagle fireballs, eagle cocktails, towed charge, pole charge, and satchel charge. This document was found on HASAN’S computer. In order to construct some of these devices, the document states that it is necessary to know how to prime charges electrically and non-electrically.

(c) A document providing information on how to construct an M14 Antipersonnel Mine was found on HASAN’S computer.

(d) A document identifying the 11 steps required to prepare a non-electric firing system was found on HASAN’S computer. This document refers to the non-electric firing system in the context of demolition work such as breaching minefields, breaching wire obstacles, clearing landing zones, blowing holes in walls of buildings and blowing down trees to create obstacles.

(e) A number of documents relating to surveillance tactics was found at Khaled CHEIKHO’S premises. This included a book entitled: “The Layman’s Guide to Electronic Eavesdropping: how it’s done and simple ways to prevent it” by Tom Larsen. [This book was also located at Moustafa CHEIKHO’S premises];

(f) A video containing instructions on how to build and detonate a remote anti-personnel explosive device was found at SHARROUF’s premises.

(g) Material in the form of a number of “lessons”, apparently for the training of someone to join the “military organisation” of an Islamic group to undertake militant Jihad. The lessons covered topics such as “Training”, “Weapons: measures related to buying and transporting them”, “Special Tactical Operations” (which include “assassinations, bombing and demolition”), and “Kidnapping and Assassinations Using Rifles and Pistols” (with detailed instructions on the use of various firearms), “Interrogation and investigation at prison and detention centres”. The material was found at SHARROUF’s premises stapled inside the cover of a booklet entitled “Choice Islamic Stories” [for children] distributed by the Islamic Welfare Centre, which appeared to have replaced the original contents of the booklet. [Khaled CHEIKHO’S fingerprints were located on several pages of the document.]

(h) A VHS Cassette Tape entitled “Sheikh Osama’s Training Course” and a document entitled “Lessons by Al-Qaeda and Taliban in the art of hitting and frightening the Americans” was found on a computer at TOUMA’s premises.

(i) Audio and video files displaying the beheading and execution of Westerners and other captives, attacks on the forces of the United States of America (US) and the Coalition in Iraq, images and desecration of dead soldiers, bombings of buildings and vehicles with Islamic chants and cheers and images of deceased martyrs found at MULAHALILOVIC’S premises. Other items found included songs and speeches urging Muslims to engage in militant Jihad including the killing of “disbelievers”; “Treaties in getting prepared for Jihad” and audio files which include discussing the manufacture and detonation of car bombs.

(j) Military documents relating to sniper training were found on JAMAL’S computer. A number of documents relating to sniper weapons and training, and images of snipers were located on HASAN’S computer.

(k) A number of training documents on topics including the manufacture of silencers for firearms, making grenades and mines, “electronics, explosives and poisons” and “explosives engineering” were found on a thumb drive located at the premises of ELOMAR.

(l) An instructional article relating to the kidnapping of nationals of a “hostile country” as part of Jihad was found on BALADJAM’S computer. A number of other documents relating to sniper weapons, physical training and survival skills in the context of military operations were also found.

21 The accused shared a considerable quantity of extremist/instructional material.

22 A brief overall summary of the category of matters set out in chronological and extensive detail in the Crown Case Statement is as follows:

(a) the possession by all the accused of documents advocating extremist views and the carrying out of acts of violence in the pursuit of Jihad;
(b) the possession of documents containing instructions for the preparation of violent Jihad, including, but not limited to, instructions on the assembly and use of explosive devices and the use of firearms;

(c) enquiries about and the intended and actual purchase of, components of and equipment related to the manufacture of explosive devices;

(d) the possession of such components of and equipment for, the manufacture of explosive devices;
(e) enquiries about and the attempted and actual purchase of, firearms and ammunition;

(f) the possession of firearms and ammunition;
(g) the use of various techniques and methods in order to protect the operational integrity and security of the objectives of the accused;

(h) the undertaking of other activities by the accused which reveal the accuseds’ terrorist intent, including but not limited to, discussions expressing views as to violent Jihad and attendance at camps; and

(i) evidence of association between the accused and the circumstances of that association.

23 It will be seen from the above outline that a small and relatively confined part of the Crown case alleges a connection between Benbrika, some of his associates and the Sydney men. It is not a large part of the Crown case but it is an aspect of the prosecution evidence which has itself been the subject of various pre-trial decisions in 2008.

24 One of the earliest of those was an application by the defence seeking certain non-publication or suppression orders in relation to the reporting of material emanating, or likely to emanate, from the Melbourne trial. The Melbourne trial had begun on 13 February 2008, and guilty verdicts were later to be brought in against a number of those men, not all of them, in September 2008. Sentencing submissions took place in November and December 2008 and, as I have said, the sentences were imposed on 3 February 2009.

25 On 28 February 2008, at the very outset of the pre-trial proceedings, I gave a decision (R v Baladjam & Ors) in which I refused to grant the injunctions that were then sought. It may be helpful if I reproduce in this decision some of the matters mentioned in that pre-trial decision. It is a lengthy decision and I will quote from it reasonably sparingly.

26 The nature of the “problem” asserted by the defence appears in paragraphs 3 to 8 of the decision: -

“Last week two counsel for the accused in the present trial went to Melbourne and were granted leave to intervene in that trial for a limited purpose. An application was made before the Melbourne trial judge, Bongiorno J, seeking certain non-publication or suppression orders in relation to the reporting of certain material emanating, or likely to, from the Melbourne trial. Particularly, an order was sought to achieve the proposed suppression by requiring the media to refer to one of the Melbourne accused by a pseudonym, "C" or "Mr C"; secondly, an order was sought to prohibit the naming of the Sydney accused, either individually, or by any collective title or reference.

As I understand it, these orders were sought on the basis that, if granted, they would protect the Sydney accused from being tried by a Sydney jury, chosen from a population which had been exposed to media reports of the Victorian trial as it progressed. In particular, concern was expressed as to Sydney exposure to the Melbourne Crown's allegation against one of the accused, Benbrika, and to his and the other defendants' connection with the Sydney accused.

I should mention that senior counsel for the Crown in the Melbourne trial, Mr Maidment SC, had indicated early in the proceedings that for the purposes of the opening and throughout the trial generally, any mention of the Sydney accused in the Melbourne proceedings would be limited to their first names and no mention would be made of their surnames.

The intervention proceedings took place on 20 February 2008. Counsel heard on the application included Mr Bellew of senior counsel who represented the Sydney Crown, as I shall for convenience and clarity refer to it; and Dr McEvoy who appeared with leave for all the major media interests. As I understand it, all major local and national media interests were represented, except for Channel 10 and SBS.

On 21 February 2008 Bongiorno J refused the interveners' substantive application, but suppressed details about the application itself until further order. Essentially his Honour held that the time factors involved were unlikely to lead to prejudice and that, in any event, suitable directions could be given by the Sydney trial judge to protect the capacity of adverse publicity attaching to Mr Benbrika from impacting upon the jury's task.

Secondly, his Honour thought that the Sydney trial judge would be in a better position than he was, or would be, to ensure that the Sydney accused could be tried fairly; and in a better position to adjudicate from time to time upon any matter arising from media reports that might have a tendency to interfere with the fair trial of the Sydney accused.”

27 The relief sought was set out in paragraphs 10 and 11 as follows: -

“The summons originally sought an injunction prohibiting publication of any of the following information which may be adduced during the evidence at the trial in Melbourne:

1. The names of the Sydney accused, whether in whole or in part;

2. Any collective reference to those accused and especially a reference to Sydney or any of its geographical parts;

3. Any reference to the activities of any of the accused charged in the Melbourne proceedings which take place in Sydney, as having taken place in Sydney or any of its geographical parts; or

4. Or any reference to any of the accused as coming from Sydney or any of the geographical parts.

5. Any reference to the accused Abdul Nacer Benbrika and any publication in New South Wales, except for the pseudonym "C" or "Mr C".”

28 Although it may be repetitious, it will be helpful, I think, if I set out paragraphs 19 to 21 of the decision.

“The Crown case in the present trial will include evidence concerning a Melbourne man, Abdul Benbrika. He was, according to the Crown case, an Islamist who publicly declared his support for militant or violent jihad. As I have earlier indicated, he was one of those charged in Melbourne relating to his principal role there in the terrorist organisation, which is the subject of the Melbourne charges currently being heard.

It will be alleged in the Sydney trial that Benbrika communicated with certain of the accused. For example, in Sydney, this contact was often covert in nature, involving for example airline travel being booked in false names. Benbrika had regular contact with five or six of the Sydney accused and there will be evidence of conversations intercepted on his telephone service in which extremist words were used or mentioned.

It is not, however, alleged by Crown that Benbrika is or was a co-conspirator with the Sydney accused. It is not suggested by the Crown that the Sydney accused were members of the Melbourne terrorist organisation. It is not suggested that the Sydney accused played a part in the Melbourne organisation's plan to advance the cause of violent jihad by explosive or violent activity in that state. It is not suggested that there was any joint conspiracy between the two groups to engage in any joint criminal enterprise of violent jihad.”

29 The basis of the application before me in February 2008 was the substantial amount of media publicity that had been extensively reported in Victoria, New South Wales and elsewhere in Australia arising out of the Crown opening in Melbourne. Counsel argued that there would be potential prejudice on behalf of the accused arising out of the material opened by the Crown in Melbourne, especially the evidence against Benbrika, but generally in relation to the Melbourne co-accused as well. The particular concern was, however, with material which would not be duplicated in the Sydney trial. As I pointed out in my decision, the “Benbrika connection” was an important part of the Crown case in the Sydney trial but it was limited and, overall, relatively minor in its scope and extent. The material that formed part of the allegations against Benbrika in the Melbourne proceedings was summarised by me at paragraphs 24 to 29 inclusive.

“Both Mr Waterstreet and Mr Scragg have provided me with written summaries of aspects of the Crown opening in Melbourne. These summaries highlight certain behaviour by Benbrika alleged in the Melbourne proceedings, which will not be part of the case against the Sydney accused. They include the following:

(a) Activities and communications between Benbrika and an undercover officer concerning explosive material;

(b) Statements of Benbrika and his co-accused concerning the desirability of blowing up public areas such as football grounds or train stations.

This very brief summary does not attempt to embrace all of the matters alleged against Mr Benbrika in the Melbourne proceedings. There are many more and they are fully set out in the written submissions which have been provided to me. In the main, these matters do not form any part of the material that is to be led by the Crown in the Sydney trial.

I have also been provided with newspaper reports, some of which carry rather sensational headlines, about the evidence that will be adduced in the Melbourne trial against Benbrika and his Melbourne associates.

Mr Waterstreet has extracted a correlation between the name "Benbrika" and "bombing" or "bombs". This emerges from a Google search and there were literally thousands of entries matching the two words.

The gravamen of the arguments before me focuses upon two matters principally. The first is the asserted temporal connection between the Sydney trial and the Melbourne proceedings. It has been argued that although the Sydney trial may not start for some time, there is likely to be an area of overlap between the commencement of the Sydney trial and the conclusion of the Melbourne trial. Consequently, so the argument runs, there will be a potential for prejudice to taint members of the community who may form part of the jury pool. Thus will extend to the actual jury who are selected, if publication of damaging material about Mr Benbrika is to continue in the Sydney media unabated.

Secondly, it has been argued that although the more unfavourable and damaging publicity about Mr Benbrika is not to be introduced in the Sydney trial, Sydney readers or followers of the media generally will have had their minds poisoned about Mr Benbrika to such an extent that when the trial starts, the jury members will be likely to find the present accused guilty because of their association with such a repellent and dangerous person.”

30 In the end I decided to refuse the relief that was sought. My reasoning is contained in paragraphs 43 to 62. I shall set out those paragraphs here.

“Consequently the questions I propose to pose for my determination are these:

(a) Have the accused satisfied me that an injunction is necessary in the present circumstances to protect the public interest in the due administration of justice or to maintain the integrity of the judicial process?

(b) Have the accused satisfied me in the present circumstances as to the test of necessity so far as the suppression or non-publication orders are concerned?

After careful consideration, I have come to the conclusion that I must answer each of these questions in the negative.

The first matter to be considered is the nature of the orders sought. It is quite clear to me that these have been both deliberately and carefully framed to suggest a minimal disturbance to the principles of open justice. Despite the care with which they have been crafted, they do not, in my view, disguise the fact, however, that what is proposed is a relatively substantial interference with the first principle of open justice I have stated above.

Secondly, I do not consider that the temporal connection between the two trials warrants the conclusion argued for on behalf of the accused. There is, I think it is clear, a temporal connection. But it is rather more remote at this stage than has been argued. My own present estimate is that there may be anywhere between three and six months before a jury will be empanelled in the present trial. This estimate is based, so far as one can make an estimate, upon the nature of the interlocutory applications I have seen thus far, but, even in the course of this week, I have seen those increase, or at least potentially increase, in a reasonably significant way. Thus, experience suggests it may be many months before anything that could be described as a potentially critical situation might arise.

I positively reject any suggestion that the publications that have occurred in the New South Wales media since the Melbourne trial began in mid February have, or could have, in any realistic sense, already "indelibly poisoned" the minds of potential jurors. Many months hence, fifteen jurors will be selected from a pool of perhaps eight or nine hundred citizens. The pool itself will be selected from a vast population area. The possibility that any of these fifteen jurors will or would recall, or will or would have paid much heed to, the material that has been published thus far is quite remote.

Moreover, by the time the present trial commences with the empanelment of the jury, the potential jurors may be quite uninterested in the reporting that will have occurred between now and the time of empanelment. There will be many thousands of media reports on all sorts of topics to divert, stimulate or interest people between then and now.

It is true that recent reporting has painted Mr Benbrika in a most unfavourable light. But there will be many other people painted in an unfavourable light in the media between now and the time of the empanelment of the jury. This will happen on every page of the newspapers. It will happen in many segments of the television news. It will happen on the media that is available and accessible over the Internet.

It is quite possible - indeed somewhat likely - that the reporting itself will not be as intense as the months go by as it has been for the last couple of weeks. I do not suggest that there will not be a degree of reporting of the Melbourne trial as the weeks and months pass, but it is, I think, unlikely to be at the level generated by the reporting of the opening of the Crown case by Mr Maidment in Melbourne.

So often one sees a situation where a Crown opening attracts considerable attention on the front or leading pages of the newspapers but, as the trial progresses, it dwindles towards the back pages. The reporting becomes less intense; the headlines become less sensational, and the like. Of course, I cannot foresee exactly what will happen in the present matter. I have no reason to suppose otherwise than there will be a lessening of publicity.

Further, the surnames of the Sydney accused will not be mentioned in the reporting of the Melbourne trial. To my way of thinking, this is a significant factor in relation to the arguments that have been addressed to me.

I would also add that, in any event, members of the jury pool will, at the outset of the selection process, be invited to seek exclusion from the panel if they feel, for any reason, that they are biased or cannot bring an impartial mind to the task, if they were to be selected as a jury member. This invitation will, so far as I am concerned, be expressed in quite pejorative and precise terms, so as to make it abundantly clear that any person who has a biased opinion about terrorism generally, any person who has a biased opinion about these accused men, or about any aspect of the trial, including the evidence that will be adduced in the trial, has no role whatsoever to play in the jury process. I will not hesitate to exclude any such person from participation in the jury selection process. This is not to be critical of such persons, because bias is something we all experience, as we do with prejudice. But it will be taken into account in that way at the very commencement of the trial.

The next matter I come to consider is that I am conscious that, in England especially, suppression orders, or more accurately postponement orders, have issued from time to time in what are described often as back to back trials.

Now, the position in the present matter is, to my mind, quite different from those situations. First, I do not accept the submission that, having regard to the anticipated evidence, any of the Melbourne accused, including their spiritual leader can be regarded as an un-indicted co-conspirator.

Secondly, I have earlier set out, and I repeat, that no member of the Sydney accused is, on the Crown case, a member of the Melbourne organisation. It is not suggested by the Crown that any member of the Sydney accused played any part in the Melbourne organisation's plan to advance the cause of jihad by bombing or explosive activity in that State; finally, it is not suggested that there is any joint conspiracy between the two groups to engage in a joint criminal enterprise involving violent jihad.

Thirdly, the evidence to be led in this trial of an association between any of the Sydney accused and Mr Benbrika, or for that matter any of the other Melbourne accused, is, in the main, evidence of intercepted calls and of a few meetings. The relevance of the evidence is, as I presently understand it, germane especially to the mental element of the alleged offence and proof of the terrorist nature of the preparatory actions by some of the Sydney accused.

I should mention that there is to be a challenge to the Melbourne evidence, both as to its relevance and as to its prejudicial effect. In relation to the latter aspect, the Court will be asked to exclude the evidence. But, assuming the evidence is admitted, the jury will be aware of no more than the content and nature of the relevant conversations. The relevance and scope of such material, if admitted, will be limited to the conversations, the terms of those conversations, and the meetings themselves. It is true that the jury may become apprised of Mr Benbrika's extremist views arising from that material, but that is all that they will know from the evidence in this trial.

May I divert my remarks to make one further comment. I do not know what the issues will be in this trial. We are nowhere near counsel informing me what those issues are. For all I know, it may become a relevant issue in this trial that the accused, or some of them, will wish to distance themselves from Mr Benbrika and from his views. They may wish to paint him in a bad way. I mention this merely to indicate how hypothetical, in some way, the present arguments are when they are divorced from the real issues in the trial, or they may be when the real issues in the trial are known. It may be that those issues are not even known to counsel at this stage. This is of course, merely speculation on my part; and it plays no part in my reasoning. It is simply a comment.

In any event, to return to the evidence itself, if it be admitted in the Sydney trial, this leads me to the final matter that persuades me that the relief should not be granted. This is the issue of the giving of directions to the jury. The experience of the Court has been that, even in the absence of specific directions, jurors bring a special integrity to their task and have a basic appreciation that they are concerned only with the evidence in the trial and not with other matters, even where those other matters may relate to publication of material in the media.

Secondly, it is the further experience of the Court that juries in the main do pay heed to specific directions given by the trial Judge. There is a great deal of authority now, which provides principal support for the anecdotal experience of individual judges. ( Re: Glennon (1992) 173 CLR 592 at 603; Kanaan v R [2006] NSWCCA 109; John Fairfax Publications v District Court at 103; R v Lodhi [2007] NSWCCA 360 It is, of course, far too early to say what directions should be given to the jury in this matter, or when such directions should be given, especially in relation to publication that has occurred to date, or for that matter to publications which may occur between this date and the commencement of the Sydney trial, or after the trial has commenced. Throughout all these periods, the Court will be in a sound position to assess, reassess and monitor the situation from time to time over the next three to six months, or, indeed, if it be necessary, over the next twelve months.

31 The pre-trial decisions then proceeded apace. A number of months later, on 28 May 2008, I gave a decision on the foreshadowed application to exclude the Melbourne evidence altogether. In this decision, R v Baladjam [No 19], I declined to exclude the evidence. It may be helpful, once again, if I set out a number of the paragraphs in that decision where details of the foreshadowed "Melbourne evidence" in the Sydney trial were set out. It needs to be borne in mind, however, that some of the evidence that was referred to in R v Baladjam [No 19] has since, for one reason or another, not been pressed by the Crown. Moreover, the “detail” of the evidence should not overshadow the fact that it is, literally, only a fraction of the evidence being led in the Crown case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 One of the principal arguments in R v Baladjam [No 19] was the relevance of the Melbourne evidence to the Crown case. The Crown had submitted that it was generally relevant to the existence and scope of the alleged conspiracy. Further, in some respects it was said to be relevant to the intention of various of the accused in undertaking activities said to be in furtherance of the conspiracy. It was also pressed as relevant to rebut the likely defence case, namely that the acts of the individual co-conspirators might be explained in an innocent fashion, without reference to violent jihad.

33 So far as Benbrika was concerned, the Crown had urged that the limited material involving him was relevant, more precisely, on the basis of the fact that other evidence would show that the accused, or at least some of them, were receiving religious advice and inspiration from Benbrika, a person who supported and promoted violent jihad. There was also limited evidence that the accused may have been supplied by Benbrika and others with extremist material, including instructional material. There was also evidence, as the detail indicates, that they were assisted, at least on one occasion, by Benbrika and Joud, in their attempts to obtain a quantity of laboratory equipment.

34 It is not necessary for me to refer to all of the arguments that were advanced on behalf of the accused in an endeavour to exclude the Melbourne evidence. They were many and varied. Ultimately I held that the material was relevant and should be admitted. In general terms, I accepted the basis of relevance that had been urged by the Crown. In particular, at paragraphs 109-112 I said: -

“Applying the Evidence Act test of relevance to the conversation, in the light of the manner in which the Crown will contend that the Melbourne evidence generally may be used in the trial, it will be seen that it is the relationship itself between Benbrika and the accused that brings about a situation where the conversation may properly be regarded as relevant. The relationship is one evidenced by the duration, frequency and content of the association between Benbrika and many of the accused on the other. It is that relationship, being one of religious and spiritual guidance, that makes relevant the fundamentalist attitudes expressed both publicly and privately by Benbrika. The relationship is one of spiritual guidance in connection with his views on the dictates of Islam. To Benbrika, jihad is a fundamental precept of his religion. This he makes clear in the interview in The 7.30 Report on the ABC in August 2005. He is an admirer and supported of Osama bin Laden. He does not tolerate other religions. Benbrika is what sections of the media have loosely described as “a fire brand cleric”. Tacitly, he appears to approve of the September 11 destruction of the Twin Towers and the loss of American civilian lives. He is reluctant to ascribe blame to Al-Quaeda, but if they were the perpetrators, their actions were justified.

It is clear that the relationship does not prove by itself the existence and scope of the alleged conspiracy. Nor does the conversation. The conversation, and indeed, the relationship, are but part of an overall circumstantial case that includes the actions of the Sydney accused themselves in ordering laboratory equipment, ammunition and other materials arguably connected with preparation for a terrorist act or acts. It includes as well their possession of extremist material supporting jihad. The nature of the association, in my opinion, is relevant as a circumstantial fact, in proof of the existence and scope of the conspiracy. The accused are men with strong religious views about their faith. They hold strong views about events relating to Muslims in the Middle East and elsewhere. They are disconcerted by the attention paid to them by police and other authorities. They look to Benbrika as a religious leader.

The conversation may also be relevant (although I make no decision at this stage) as part of an act done in furtherance of the conspiracy. The conversation, after all, occurred as part of a wider discussion, which included aspects of religious guidance in the context of Islamic history. It occurred in the context of references to Islamic history including military action, warfare and martyrdom. It included the discussions referrable to a plan to organise an order for the supply to the Sydney accused of a large volume of laboratory equipment. The ordering of the laboratory equipment is alleged by the Crown to be an overt act within the conspiracy. Indeed, the general relevance of evidence relating to that act (including discussion about it) is, subject to some arguments about exclusion under s 137, not seriously put in issue by the accused. Whether the conversation might be relevant in this further way, I shall put to one side. The application of the co-conspirator’s rule will normally be considered at the close of the Crown case.

35 The issue of the possibility of potential prejudice arising because of the possible juxtaposition of aspects of the Melbourne trial with the Sydney trial was also a matter I adverted to in this earlier decision. At paragraphs 132 to 135 I addressed the potential for prejudice in the following terms: -

“The issue is whether s 137 requires the exclusion of the evidence because the jury in the present trial will be likely to make the wrong use of publicity emanating from the Melbourne trial. This is particularly likely to be the case, it was argued, should the Melbourne trial result in a conviction and should it conclude at or after the time the Sydney trial commences.

I accept that there is a genuine concern involved in this aspect of the defence submissions. It is probably too early at this stage to make a final decision about the outcome of the argument. Much will depend upon the timing of the conclusion of the Melbourne trial and the commencement of our own. If I assume, as I think I probably can, that the Sydney trial will not begin until about September, how will that affect the position? The best indication I have at the moment is that the Melbourne trial may finish in June 2008. In my opinion, the position is simply too uncertain to make a final decision about these contingencies at the present time.

I will say this: If the timing of the Melbourne trial throws into very close juxtaposition the commencement of our own trial, I would incline to the view that the use of the names of the Melbourne men ought be altered or shortened in some way to minimise the question of prejudice. I agree entirely with the Crown submission that appropriate directions to the jury to confine themselves to the evidence in this trial will be respected by the jury and obeyed. I have no doubt about that. It is my conviction, having been involved now in many criminal trials over the last eight years as a trial Judge. Prejudice and bias are difficult creatures to harness, however, and I do not consider that the Court should be restricted to the use of but one weapon in its armoury. It is for that reason that, depending on the way events turn out, I consider that some "editing" of the identity of the relevant Melbourne men may well be desirable. I put it no higher than that at the present time.

I propose to leave it to the parties, however, to discuss and agree about the form any such editing or cloaking of identity should take. I would expect the parties to agree to a sensible compromise. I will intervene if that is not possible, but that intervention should be left until the appropriate time, if it be necessary. I do not consider that the “admissions” drafted by Mr Dalton SC, helpful though they have been in considering this aspect of the argument, should be foisted on the Crown if it is unwilling to consent to that course.”

36 The final material I considered in that decision was contained in footage of The 7.30 Report program on ABC on 4 August 2005. I addressed the issues relating to this evidence and its potential for prejudice in the trial at paragraphs 170 to 184: Ultimately, I determined the evidence should be allowed and did not require exclusion. At the conclusion of the decision, I said: -

Evidence Act

37 Prior to the commencement of the Crown opening in the present trial, the parties informed me that throughout the trial the Crown would refer to Benbrika as Sheikh Bakr and that any of the other Melbourne men mentioned would be referred to by their first names only, and no more. That procedure has been followed up to the present time.

38 It is necessary to refer, again by way of background, to one further pre-trial decision. This was the decision in R v Baladjam [No 59]. It was given much later on 10 November 2008, immediately before the Crown opening. The application had been brought on behalf of all the accused, although it was made in the name of one of them, Abdul Rakib Hasan. The orders sought by Mr Hasan were as follows: -

“(i) that there be no publication of any information tending to connect criminal proceedings in Victoria against Benbrika, Haddara, Hammoud, Joud, Kent, Merhi, Ahmad Raad, Bassam Raad, Ezzit Raad, Majed Raad, Sayadi and Taha, information or evidence revealed therein, and the proceeding in this Court commenced by the filing of an indictment on 25 February 2008 against Hasan, Baladjam, Khaled Cheikho, Moustafa Cheikho, Elomar, Jamal, Mulahalilovic, Khaled Sharrouf and Mazen Touma.

(ii) no further publication of the interview between Abdul Nacer Benbrika and the ABC on 4 August 2005 or any part thereof.

(iii) no publication of any photograph or image of Abdul Nacer Benbrika.

(iv) no publication of this application or of this hearing.”

39 The particular application arose because of wide publicity given to The 7.30 Report, to which I have made reference, in media reports following upon the conviction of a number of the Melbourne accused in mid September 2008. In particular, the publicity had focused on images of Benbrika taken from the 7.30 Report of 4 August 2005. It was anticipated that the submissions on sentence hearing for those convicted in Melbourne would take place on 18 November 2008. As I have said, the Crown opening in the present trial was scheduled to commence on Tuesday, 11 November 2008. The Crown had indicated that it would wish to tender during the trial at least the interview with Benbrika from which segments were taken in compilation of The 7.30 Report. It also wished to tender other material relating to Benbrika's relationship with some of the accused.

40 It seems that shortly after the verdicts in the Melbourne trial, Bongiorno J had made an order in terms that were very similar to orders (i) and (iv) in the notice of motion then before me. I had been informed that his Honour's ruling had been made on the basis of the likely prejudice to be suffered by those of the Melbourne accused who would be facing a second trial some time in mid or late 2009 (perhaps later), which would allege certain facts showing a connection with some of the Sydney men. As I understood it, his Honour's order was to safeguard the interests of those Melbourne accused in that respect. The application before me, however, was brought to protect the Sydney accused from a similar problem arising in their trial, particularly in the light of the sentencing submissions that would be made in Melbourne, and the publicity likely to be given to the subsequent sentence. The orders in paras (i) and (iv) were sought by Mr Hasan on the additional basis that Bongiorno J's orders might not have a cross border validity. In other words, the orders were sought, for more abundant caution, to ensure the media outlets, through their local publications in Sydney, did not reveal, when reporting the Melbourne outcomes, a connection between the criminal proceedings in Victoria and the proceedings in this Court.

41 So far as the orders sought in paragraphs (ii) and (iii) were concerned, the concerns were more broadly based. The concern was that, when Benbrika came to be sentenced, the publication of images of him, and statements made by him, taken from The 7.30 Report, or the unedited interview, might reinforce in the Sydney jury's mind not only the fact that he was a person with extremist views, but that he was a convicted and imprisoned terrorist. The concern was that, when Benbrika came to be sentenced, the media might rely upon the images in The 7.30 Report, the very material that would or might have been shown to the jury in the present trial.

42 In the ultimate, I determined that I should make the orders sought in paragraphs (i) to (iv) of the notice of motion. As it happened, order (i) was made in a slightly amended form but it is not necessary to focus on the difference between the orders sought and the order ultimately made. In relation to the order sought in relation to the images of Benbrika, it may be convenient if I simply reproduce paragraphs 63 to 75.

“I turn then to the major issues, those raised by orders (ii) and (iii). In my view, it is reasonably necessary to make the order sought in para (ii) of the notice of motion. The restriction involved is itself necessary to secure the proper administration of justice. I agree with Mr Dawson, however, that order (iii) is too broad in its terms. I propose to make an order in modified terms to that originally suggested in (iii). I am also satisfied that making an order in the modified form is necessary, and that the restriction itself is necessary for the due and proper administration of justice. I will briefly state my reasons for these conclusions.

First, I do not consider that orders (ii) and (iii) constitutes a ban or a prohibition on reporting the sentencing submissions in Melbourne. Nor do I consider that they would constitute a prohibition on reporting the outcome of the sentencing hearing, including the sentence or sentences themselves. All that will be prohibited is the further publication, for a stipulated period of time, of the images or content from The 7.30 Report, or images or content derived from it or based on it. In essence, all that will be prohibited will be a particular image or images and their potential derivatives.

I do not consider that the situation is comparable to that dealt with in John Fairfax Publications v District Court of New South Wales . There the non-publication order was of the verdict itself. The Court held that the test of necessity must be applied with strictness, and that the objective of ensuring the fairness of a subsequent trial could be achieved in another way. It could have been achieved, for example, by a stay order or an adjournment.

By way of contrast, the non-publication order here does not impinge upon the reporting of the sentencing proceedings or the sentences themselves. In addition, it could not be seriously suggested that either the present Sydney trial, or the Melbourne sentencing proceedings, should be stayed or adjourned. So far as the Sydney trial is concerned, the accused have been in custody, bail refused, for over three years. So far as the Melbourne proceedings are concerned, there is an obvious need that sentences be pronounced at the earliest possible time. Either an adjournment or a stay, in either case, would be a serious affront to the proper administration of justice.

Moreover, the restriction on publishing Benbrika's images from The 7.30 Report is, to my mind, a relatively minor infringement of the principles of open justice, if it be an infringement at all. I accept that the unedited form of the Channel Two interview with Benbrika was an exhibit in the Melbourne trial. To that extent, the non-publication order I propose will, at least so far as New South Wales is concerned, result in a temporary restriction of further publication of that exhibit or derivatives from it.

On the other hand, it could not be said, in a real sense, that the Channel Two interview is an essential part of the sentence proceedings. It is certainly not part of the sentence itself. This is not to say that some reference to the interview might not appear in the reasons for sentence. But that fact would not require the republication, or further publication, of the images that were shown at the time of conviction. To the extent that it might be thought to be necessary, the restriction is, as I have said, of a relatively limited nature.

The important point, of course, is the evaluation of the effect that further publication of the images might have on the jury in the Sydney trial. I am not prepared to say that publication of those images, following the imposition of sentence, necessarily would warrant the immediate discharge of the Sydney jury. As many of my earlier judgments have shown in the present trial, I am firmly of the view that juries pay attention to and heed directions from the trial judge.

If the images of Benbrika from The 7.30 Report were further published in the next few weeks, for example, this would not necessarily lead to the discharge of the jury because directions could be given to them to ignore the content of the reports associated with the publication of those images. There would, however, be a potential risk for a discharge of the jury and, depending on the precise circumstances, that prospect would have to be seriously entertained. Beyond that prospect, there would always lurk an unresolved concern that the Sydney accused might have had their right to a fair trial jeopardised by the insistent publicity surrounding the further publications of the Benbrika images. It is these considerations that drive me essentially to the conclusion that orders (ii) and (iii) are necessary, and that the making of the orders now is itself reasonably necessary. Mr Dawson’s “timing” argument is, with all due respect, unrealistic. The likely timing of the prejudicial events clearly points to the need to make an order at this stage.

Mr Dawson argued that the problems with securing a fair trial could be managed, as he put it, from the inside out. This was a reference, first, to the use of pseudonyms. That measure has, it must be conceded, already been adopted. Secondly, he suggested that the image of Benbrika shown by the prosecution to the jury in the Sydney trial could be the subject of pixilation. I am by no means satisfied that pixilation of images would prevent the jury from realising that the images they may well have already seen of Benbrika at the time of his sentence were those of the same man whose pixilated images were shown to them during the Sydney trial.

There is, however, another point to be made about Mr Dawson's second suggestion. The prosecution in the Sydney trial maintains that it is essential that the jury see clearly the demeanour of Benbrika when he made the statements which I have set out in the earlier part of this decision, those being statements of an apparently extremist kind. Without the ability to observe closely the demeanour of the Melbourne cleric, the assessment of his beliefs and views would be made significantly more difficult.

This leads me to Mr Dawson's third suggestion of management from the inside out. He argued that the Crown, in the Sydney trial, could be simply prohibited from showing The 7.30 Report images altogether. In relation to this submission, to a degree Ms Yehia and Mr Dawson shared something of an unholy alliance. Each, for rather different reasons, supported the proposition that the Crown should not be permitted in this trial to show the jury the images contained in The 7.30 Report. Ms Yehia's position was consistent with that urged by defence counsel in previous pre-trial applications, although it must be fairly presumed that one reason for this approach may have been the apparent cogency of the images in revealing the impact of the genuine fanaticism of Benbrika. It would plainly be beneficial, from a defence point of view, if the images were not shown to the jury at all.

Mr Dawson's embrace of this third suggestion was rooted firmly in the contention that, absent the showing of the footage in the Sydney trial, there could be little complaint if his clients were permitted to show the footage as an attractive, albeit rather sensational, adjunct to the reporting of the sentencing proceedings in the Melbourne matter. There can be no doubt that the ability to show those images at the time of Benbrika's sentencing would be beneficial from the point of view of the media outlets.

The relevance of the background material

43 I have taken considerable trouble to assemble this background material as a proper context to the present application. It enables, I consider, some general points to be made. First, the present trial has at all times proceeded with the Melbourne trial hovering as something of a cloud on the horizon. This simply came about as a coincidence of timing. The Court, senior and junior counsel, and the parties, have been aware at all times of the need to proceed watchfully and with caution in view of the potential for publicity, particularly sensational publicity, to emerge from any aspect of the Melbourne trial.

44 Secondly, it is fair to observe that both this Court and the Victorian Supreme Court have, it appears, crafted, on occasions, moderate orders, where it has seemed necessary to do so, to restrain potentially troublesome publicity from arising.

45 Thirdly, in general terms, those orders have been respected by the media bound by them.

46 Fourthly, it is fair to observe, as I predicted in February 2008, that the publicity generated by the Melbourne proceedings has diminished considerably, in relative terms, as the months have passed. In practical terms, it might be observed that it has dwindled considerably as a news item of major interest. For example, at the time of the order I made in February 2008, there had been a massive amount of publicity focusing upon the three-week opening by the Crown of the evidence that was likely to be led in the Melbourne trial. As it turned out, that publicity occurred some eight months before the jury in the Sydney trial was empanelled. In that sense, it did not pose any real problem for the commencement of the Sydney trial, although potential jurors would have been possibly aware that there was a terrorism trial proceeding in Melbourne.

47 The verdicts of the Melbourne jury were brought in during September 2008. Again, at that time, there was a brief flurry of publicity, but it was markedly less than the publicity that had accompanied the opening of the trial. The sentences were imposed on 3 February 2009 and, as I shall later demonstrate, the publicity surrounding the sentence had very considerably diminished by this time. Essentially, it demonstrated itself in news bulletins on 3 February, newspaper articles on the 4th and Internet publications on those two days. Although news bulletins appeared on both those days, it is clear, as I shall point out, that the scope of the publicity was very significantly less than it had been at other times during the year. In general terms, the topic had been well and truly relegated away from front headline status.

The material relied upon by the accused in support of the application

48 The approach taken on behalf of the accused was to assemble, through the affidavit of Juliana Crofts (and other diligent research by counsel), every possible media mention of the sentences in Melbourne. These were to be found in radio news clips on 3 February 2009, and in television news broadcasts on 3 February 2009. They also included media print reports in The Daily Telegraph, The Sydney Morning Herald and the Australian on 4 February 2009. There were two further short articles in the Australian on 5 February 2009. Finally, in the first volume assembled on behalf of the defence, there were a number of Internet reports, principally on 3 and 4 February 2009 (there was one Internet “mention” on 6 February 2009).

49 Not content with this amount of research, at the hearing of the application, the defence by then had been able to assemble some further material that had, after further exhaustive search, been discovered. The “second” volume contained first a list of Google links, that is to say, links searched for and organised by Google on 3 and 4 February. The majority of these were references to links in far away countries: Asia, America, South Africa, Europe and beyond. The second category in volume 2 were a few further Internet reports, principally on 3 and 4 February 2009 (although some were anticipatory of the sentence being dated 2 February 2009). I shall refer to these as the volume 2 Internet material. Finally, I was handed up one Internet extract from the website dated 4 February 2009 and a wikipedia entry basically dating from 2005, but with modifications as at 3 February 2009.

Submissions on behalf of the defence application

50 The defence asked me to find the following as facts to be taken as accurate in relation to the application: -

(a) There has been reference in the trial to some of the Melbourne men who were convicted of terrorism related offences in Melbourne.

(b) The first names of these men were also mentioned in documents in the possession of the jury, namely a chronology of Crown allegations, and the first (of three) folders of telephone intercept transcripts.

(c) The media have, in their reports, “made the link between Benbrika and the name Bakr”.

(d) The Crown material to which reference has been made, and the Crown opening, mentioned that "Aimen's" premises were located in Hoppers Crossing.

(e) The jury has seen the unedited interview which led to The 7.30 Report. This means that they have seen footage of Sheikh Bakr in the trial. It follows, having regard to the material relied on by the defence, that there is a link between Bakr and Benbrika, who now stands convicted of directing a terrorist organisation.

(f) The jury has, during the trial, seen images of various of other of the Melbourne men, such as Bakr, Aimen and Fadl, at the Formule One motel at Casula.

51 I shall make comments about these co-called “facts” a little later in this decision. Some of them I accept, others I do not.

Submissions by Mr Waterstreet

52 In the light of these "facts", the submissions made by Mr Waterstreet were principally as follows: -

(a) The connection between the Sydney accused and the Melbourne men is of considerable significance to the prosecution case (Mr Waterstreet gave detailed reference to parts of the Crown opening).

(b) The suggestion that Benbrika acted as a spiritual leader to some of the Sydney accused is “dangerous”, especially in the light of some of the detailed findings of Bongiorno J in his sentencing decision (it might be observed that the quoted parts of Bongiorno J's decision do not appear to have been published in the media).

(c) The jury is likely to have made or will make a connection between the "Aimen" mentioned in the Sydney trial and the man Joud, who was convicted and sentenced in Melbourne. This is because of his first name and the fact that in the media (or some portions of it) there is a mention of his address being “Hoppers Crossing, Victoria”. This address has been mentioned in the Crown opening and in one of the two documents earlier identified).

(d) Any link between the present accused and "Aimen" will be especially prejudicial in light of some of the remarks of Bongiorno J suggesting that Aimen had been a leader in the organisation in Melbourne (once again, this passage in the sentencing decision does not appear to have been quoted in any of the media reports).

(e) The Crown case in Sydney will invite the jury to conclude that activities which might otherwise appear innocent have a sinister purpose. The jury will "unquestionably" be more apt to follow this suggestion in the light of its knowledge of the fact that the Melbourne offenders were convicted of terrorism offences. (The Crown in its opening had referred to the first name of three men who were present with some of the Sydney accused at a camping trip at Curranyalpa. These men had the same first name as three of the men convicted in Melbourne.)

Submissions by Mr Dalton SC

53 Mr Dalton SC on behalf of the accused Elomar stressed that many people these days take their information from the Internet rather than from the newspapers (Mr Dalton was conscious of remarks I made during argument that, generally speaking, the newspapers, the print media and the radio had not contained material prejudicial to the position of the accused in this trial).

83 The third newspaper is The Daily Telegraph. This is a publication that would undoubtedly be read by many Sydneysiders, and is unquestionably popular in the area around Parramatta. There is a small article on page 11, which is significantly less prominent than each of the two other articles I have already described. There is also a small picture of the same image of Benbrika being led away by police officers, but it is entirely indistinct and his face cannot be seen. The fact that this innocuous brief article appears on page 11 is a fair indication of how disinterested in the item the more “sensational” newspapers have become by this time.

84 The other articles in the subsequent publications of The Australian do not require any detailed specific comment. The article "Terror Lurking Within" has a photo of Benbrika being led from the Victorian Supreme Court, but his face is entirely pixilated. There is a reference to the joint task force operation "Operation Pendennis", but this is buried well down in the third column, and is not stated to have any relationship to the Sydney trial. This article appears on page 11 of the publication.

85 I will not take a significant amount of time in describing the television reporting footage. It will be sufficient to deal with it on an overall basis. None of the ABC reports has any photos of Benbrika or images taken from The 7.30 Report. There is a group drawing of all the men in the dock in Melbourne, but the image of Benbrika is dissimilar to that seen by the jury in the Sydney trial. The Channel Ten News has an entirely “pixilated” shot of Benbrika's face. Channel Nine has a distant piece of footage, which similarly would not link the convicted man to The 7.30 Report interview. Channel Seven News has a clearer image, but it is shown very briefly and fleetingly. The only news item having a clearer picture of Benbrika is SBS News, but it is not an image taken from The 7.30 Report. None of the TV news reports were lead items. Overall, each appeared about halfway through the news programme, and they were, in each case. relatively short "grabs". For example, the news report on the ABC was 36 seconds; the report on Channel Nine, 33 seconds; the Channel Seven report was similar. The Channel 10 report - with the face of Benbrika pixilated - was 95 seconds. Again, the only one that fell into a slightly different category was SBS where the report was 168 seconds. It was a longer item than the others, although the image of Benbrika was only there for a relatively short portion of that time. There was nothing of note on either Lateline or the ABC Late Report.

86 I turn then to the radio broadcasts. These were, with one exception, as the Crown submitted, very brief news broadcasts appearing during ordinary hourly bulletins. There was nothing sensational in any of them, and nothing which linked the Melbourne trial to the Sydney men. Benbrika was referred to by his own name throughout. There was, as I recall it, no mention of the addresses of any of the Melbourne men who were sentenced. There was an opinion piece by Mr Morrison on 2GB at 4.08 on 4 February 2009. It, however, was harmless and made no connection between the matters in the two trials, or the persons in the two trials.

87 I turn then to the Internet publications contained in Volume 1 of Exhibit 1. The ABC bulletin posted on the afternoon of 3 February 2009 did refer to “Aimen Joud of Hoppers Crossing”. There was a drawing of the men in the dock but the portrait of Benbrika bore no relationship to the image seen by the jury in The 7.30 Report. The image, as I say, was in the nature of a drawing.

88 There were several reports on the Melbourne Age website. These, of course, would be accessible to anyone in Sydney but I doubt whether many, if any, Sydney residents would have bothered accessing them. In any event, there was nothing particularly significant in those reports. One of them had a drawing of Benbrika, but it was not particularly similar to the image shown on The 7.30 Report. Indeed, it was rather dissimilar. One of them had a reference to the phrase “maximum damage”. I will return to that matter shortly.

89 The next four Internet publications were on The Australian website. The first of these has a drawing of Benbrika that is quite dissimilar to the image in The 7.30 Report. This does mention the address of the accused Joud as being “Hoppers Crossing”. It gives the full names of the other men as well, and their suburbs of abode. Benbrika is referred to only by this name in each of the articles. There are brief references to findings of fact made by Bongiorno J in the sentencing proceedings.

90 The only website in Volume 1 that mentioned that the defendant Abdul Nacer Benbrika was also known as "Abu Bakr" is the Adelaide Now website of 3 February 2009. This is a detailed, six-page article, and a brief reference to the name "Abu Bakr" is to be found in the middle of page 2. Once again, I accept that it would be an accessible website for people in New South Wales, but I hardly think it would be one accessed by Sydney residents to any great degree, if at all. There are other State websites gathered together in the exhibit, but these contain no images and no mention of Benbrika other than by his full name. These websites include Canberra, Melbourne and the BBC News and Asia Pacific. The BBC News does have a facial image of Benbrika that may have been taken from The 7.30 Report.

91 Volume 2, as I have said earlier, was produced apparently as a result of thorough and diligent searching by Mr Waterstreet's junior counsel, Mr Lange. Prior to its tender, it is fair to say there had been only one mention in all of the media reports I have analysed of the name "Abu Bakr". There was no mention of "Sheikh Bakr". The only reasonable likeness of any duration appeared on the SBS News although it was comparatively brief, and the image shown on the BBC/Asia Pacific Internet site.

92 The first body of material in Volume 2 of Exhibit 1 is the list of links on the topic organised by Google. There is no need for me to detail these. They are all obviously accessible, although many of them relate, as I said much earlier in this decision, to far-flung countries and far-away places. Counsel did not draw my attention to anything remarkable in any of them.

93 The second section of Volume 2, however, did contain one particular publication that drew some comment in submissions. This was a publication on news.ninemsn.com.au appearing at 18:21 on 3 February 2009. The publication tendered before me does not have any image of Benbrika. I have, however, taken the opportunity to access the website myself and I have noted that it is possible to play a recording of the news broadcast that would have been made on Channel Nine on 3 February 2009. I have confirmed that this contains no photographic image of Benbrika, and the only image is one that is not similar to his appearance on The 7.30 Report. The point at issue, however, is that in paragraph 8 on page 1 of this report, Benbrika, who was referred to as Algerian born and the father of seven, is described as "also known as Abu Bakr".

94 “Ninemsn" is an Australian joint venture between Microsoft and PBL Media. It acts as the website for the Nine Network and is popular as a result of it being the default home page for Internet Explorer 6 users in Australia. It is particularly popular, as I understand it, because it actively syndicates television, movie, entertainment, restaurant and gig guide listings. An examination of the home page shows that it is likely to be attractive to young viewers. It has plenty of information on entertainment, and appears to concentrate on news, sport and “gossipy” pop material. I accept that it is possible that it could have been accessed by one of the jurors, although, as I have indicated, it is likely to be more appealing to young people. Two or three of the jurors fall into this category. For those reasons, I acknowledge the possibility, although, so far as I have been able to ascertain, the "blurb" for the particular news item was a normal one, and not particularly highlighted in the list of news items for the day. Secondly, the reference to the name "Abu Bakr" appears once only and in the context of a two-page publication. There are no references in it to the addresses of any of the Melbourne men. Overall, I do not consider that the article poses any risk to a fair trial. The number of visitations to the relevant article were a miniscule percentage of the overall visitations to the website during the relevant period. The statistics do not assist the defence argument.

95 The other Internet references in Volume 2 do not call for any detailed comment. An entry from the ABC website does refer to Aimen Joud as being "of Hoppers Crossing". There are also Internet sites from Geelong, AFP, Market Watch and Livenews. There are no images in any of these.

96 The final two publications that were mentioned precisely in argument were the Internet article by Karen Kissane, published on theage.com website, and an extract from wikipedia, the Internet encyclopaedia.

97 Ms Yehia raised particular concerns about the Kissane article. This was because there was a reference to the jury having heard Benbrika say on one tape (in the Melbourne trial) that he wanted "maximum damage" and "to die for jihad".

“He said an act of terror would make Australia withdraw its troops from Iraq...if you kill - we kill here a thousand, the Government is going to think.”

98 Ms Yehia was concerned that the jury in the Sydney trial will hear an intercepted conversation where Sheikh Bakr mentions the phrase doing "maximum damage". However, counsel accepted that the rest of the terminology I have mentioned forms no part of this trial.

99 I consider that the reporting of the two words in an Internet site for the Melbourne Age on page 2 of the detailed article is not likely to raise the kind of prejudice that concerned counsel. It is a phrase that is not highlighted. I seriously doubt whether the casual reader, even an attentive one, would have noticed it at all.

100 The final document is the wikipedia extract. This has a very detailed entry on "Abdul Nacer Benbrika". It does indicate that he is also known as "Abu Bakr". This publication dates from 2005, although it was updated to take account of the sentence proceedings in February 2009. It is, of course, always possible that a member of the jury might access wikipedia, but I do not think it is realistic to suppose that a juror would be likely to access the entry under "Benbrika".

101 I have given the jury forceful directions warning them against inappropriate use of the Internet and its facilities. Mr Waterstreet acknowledged that this was so, but stated that the warning was in the context of any matter arising in this trial. The suggestion that the jurors might endeavour to make a connection between Benbrika and Sheikh Bakr is a matter arising in this trial and it is clear, in my view, that the direction I have given would be sufficient to prevent a jury, acting in conformity with my instructions, from accessing prohibited material.

Is there a clear connection demonstrated by the publicity between the Melbourne proceedings and the present proceedings?

102 In my view, there is no such connection. I acknowledge that there is the theoretical possibility that a juror, armed with the diligence, knowledge and interests of Mr Waterstreet's junior counsel, might, after scrupulous search of all the media material I have mentioned, conclude that there might well be a connection between Benbrika and the man Abu Bakr. But I do not consider that an ordinary juror in this trial, properly instructed and directed, would, in any realistic sense, be likely to have endeavoured to or in fact have made such a connection. There is of course a coincidence between the first names of various Melbourne men who will be mentioned in this trial and the first names of some of the men sentenced in Melbourne. Their surnames, however, are not known to the present jury.

103 There is, secondly, a connection between Hoppers Crossing, as the residence of Aimen, and the address of Aimen Joud, who was convicted and sentenced in Melbourne. I accept that this is a closer connection than the mere mention of first names. However, the mention of Hoppers Crossing to date has been slight, has not been highlighted in any way and I am by no means convinced that a reasonable juror would have seized upon, or even become aware of, the address of Joud from publicity following the sentencing proceedings in Melbourne. There is some Internet mention of that address, but very little, if any, elsewhere. It was not mentioned in the newspapers, the radio broadcasts or on television.

104 Thirdly, and most importantly, I do not accept that the media has made the link between Benbrika and the name "Bakr" as suggested in the written submissions. Yes, there are two mentions in Internet publications that Benbrika is also known as Abu Bakr. In none of the other publications relating to the sentencing is that fact mentioned. In my opinion, the media has in general terms obeyed the orders I made in November 2008. Certainly, those who were bound by the orders, with the possible exception of SBS Broadcasting, have done so. The first website that made the mention of Abu Bakr was “Adelaide Now” and the second was “ninemsn”. Neither of these are of sufficient prominence to establish the submission made by counsel. There is no direct suggestion that Sheikh Bakr, a person mentioned in the Sydney trial, is the same person as Abdul Nacer Benbrika, the man sentenced in Melbourne.

105 The publicity surrounding the sentencing was brief, muted, and did not assume any particular significance in any broadcast or news item. Generally speaking, the matter was only mentioned on the day of sentencing, or, in the case of newspaper reports, on the following day. Thereafter, other news has completely swallowed the topic up and it has not been mentioned again. In the days immediately following the sentencing, the media focused on major issues, such as the gloomy economic situation and then the terrible bushfire catastrophe in Victoria.

106 My firm view is that the entire topic of the Melbourne sentences came and went with very little fuss or attention. I watched the jury carefully on the day after the sentences and I observed no indication that their usual diligence in listening to the evidence was in any way distracted or altered from that which it had been prior to the imposition of the Melbourne sentences. No juror has sent me a note, or raised with me any question about the Melbourne sentences. At the request of counsel, I gave a brief direction to the jury on 4 February 2009, reminding them that they were to pay heed only to the evidence in this trial. This was said to be in conformity with my original instructions and their usual practice. The members of the jury indicated by their demeanour that they understood this direction perfectly. The trial has now continued for some weeks since the Melbourne sentences were pronounced. The jury has continued to go about its business carefully and apparently quite unperturbed by any aspect of the Melbourne matter,

107 In all the circumstances, having considered the facts of the argument carefully, I have come to the conclusion that the jury would not have inevitably made the connection between the Melbourne offenders and the Melbourne persons mentioned in this trial. I acknowledge, however, that there might have been some minor potential for that occurring. But, overall, I consider it most unlikely that any such connection would have occurred to jurors or would, in fact, have been made. Overall, the methodology employed by the defence in assembling material to suggest that the jury will have made a connection between the two trials is flawed, at least in two respects.

108 First, the assembly of every possible publication in this manner is not likely to have been the way any news item might potentially have come to the attention of an individual juror. Secondly, the defence approach has been based on its positive knowledge that there is in fact a connection between the two trials. What the defence has done is to “scour” every article for any possible connection and, in the few instances where such a connection might conceivably be made, seize upon it, like an amateur sleuth, as proof of the inevitable. A more realistic appraisal of the situation, from the perspective of the average juror, is that he or she may have seen a report of the sentences, brief though it was, in one or perhaps, more than one, of the media publications, and left it at that. There is no warrant for supposing any juror would have gone on the “hunt for clues” envisaged by the defence submissions.

109 A further matter that needs to be brought into the equation is that the Melbourne evidence is, in truth, a very small part of the overall Crown evidence. The jury have been listening to evidence for four months. Often each day they will have heard evidence from as many as eight to ten witnesses. They have been given a considerable number of folders, maps and copy exhibits. The Melbourne evidence has not been of any special significance. Nor has it been singled out from the vast body of evidence, of which it forms but a fraction. The ABC interview was shown in less than half an hour. It was not sensational evidence, simply one man expressing his opinion to an interviewer. I doubt whether the jury would recall where the man came from or how many children he had. Those facts were completely incidental to the interview. In addition, it was his opinions, not his appearance, that were particularly notable in the interview. The Crown case has already involved the calling of approximately 200 witnesses. A substantial number of further witnesses is anticipated, probably as many again. The Crown case statement is 181 pages long and has nearly 700 footnotes of densely concentrated evidence. It is not unfair to describe the Melbourne evidence as but a fraction of this material. Its significance is of no greater dimension than the remainder of the other material relied on by the Crown. It is all part of a detailed and elaborate mosaic or pattern going to make up the circumstantial case to be relied on by the Crown. That mosaic, including the fragments represented by the Melbourne evidence, will not fall to be considered in its entirety until the passage of a further four or five months. By that time, the publications in Exhibit 1 will be a distant memory and their impact, slight as it was likely to have been, if there had been any impact at all, will have been consigned to the oblivion inevitably awaiting “yesterday’s news”.

110 Finally, I remind myself that I have given extensive directions to the jury in this matter, and indeed to the jury panel before the jury was selected. I will not overburden this decision by setting out those directions in detail. Directions of this kind, referring to the need to determine the issues on the basis of evidence in the trial, were given on 27 October 2008 to the jury panel. Directions were given to the jury itself in relation to the dangers of Internet usage on 3 November 2008. A third and fuller direction was given again on 11 November 2008. There have, as well, been many other occasions, between November and the present time, when I have reminded this jury of the fact that they must determine the issues arising in this trial only on the evidence that is presented before them in this courtroom. I have counselled them on numerous occasions to keep this direction steadfastly in mind. As I have said, a carefully crafted but brief direction on the same point was given on the very morning of 4 February 2009. This jury has shown every indication that it is very alive to and willing to comply with the directions given by the Court. I have every reason to suppose that they have heeded my various directions to determine the issues in this trial solely on the evidence placed before them in this courtroom, and by no other means.

Other matters

111 Mr Waterstreet's written submissions suggested that the case of R v Sheikh 144 A Crim R 124 is "on all fours" with the present matter. In my view, this is not so at all. In that case, the appellant had been joined with three others in an indictment containing nineteen counts, only two of which were in respect of the appellant. A separate trial was ordered, as prejudice was likely to be suffered by the appellant because of the presence at trial of evidence inadmissible against him but admissible against the others. The appellant's trial began two days before the return of the verdict in the trial relating to the other men. The appellant was in fact being cross-examined when the verdict on the earlier trial was delivered. There is no need for me to go into any further detail in this matter. The following points of difference, however, may be noted: -

· Following the verdict against the other men, intense and angry media coverage spanned a full week between 7 and 14 June 2002.

· Coverage included broadcasts and telecasts providing extensive and graphic reporting of the earlier trial and strongly expressed commentary about the conduct, character and the just deserts of the accused.

· The overlap included the fact that the same complainant was involved in both trials; that the relevant locations of the alleged offences were the same; and that a series of connected events occurred at each trial in relation to the same identification of locations. The complainant’s reliability and courage were praised in all the reports.

· There were other overlapping similarities, including the ethnicity of the accused, the date of the gang rape, and the surrounding circumstances, where the complainant had been lured off a train and sexually assaulted at Bankstown Railway Station before being taken to other locations in the Bankstown area.

· In addition, the Court of Criminal Appeal considered that the directions given by the judge to the jury were obscure and would have puzzled the jury.

112 In the present trial, by way of comparison, the focus is on the activities of the five accused and the other persons named in the indictment as co-conspirators. Broadly speaking, the Melbourne evidence is but a small part of the overall circumstantial case and, with one relatively brief exception, is relevant to the intentions of the men and proof of the mental elements in the charge.

113 The one exception I have mentioned is that Aimen and Sheikh Bakr are said to have been involved in one of the overt acts, namely the ordering of laboratory equipment from Haines Educational in June 2005. That allegation, however, did not form part of the evidence in the Melbourne trial. It is my understanding that the particular event may, however, become part of the evidence in the future trial against Joud in Melbourne, although no date has yet been set for the commencement of that trial.

114 The evidence in the Melbourne proceedings was, apart from the brief areas of commonality I have mentioned, completely different to the Sydney trial. The charges were different and the nature of the allegations was different. I accept that there were some commonalities of a general nature, for example, ethnicity, terrorism and the presence of a spiritual leader. But the specific allegation against Benbrika in Melbourne was that he was the leader of a terrorist organisation. That allegation is not made in the Sydney trial. The role of Benbrika in relation to the Sydney men is far more muted. He is not alleged to have been one of the Sydney co-conspirators and his role is generally confined to being that of a spiritual guide to some of the men, not all of them. While I accept that the commonalities require that the Court approach the present application with caution and care, I am not satisfied that the publicity that has occurred in Melbourne has created a risk in real terms that the accused will not receive a fair trial. The risk adverted to by the accused is, in my opinion, upon analysis an unrealistic and fanciful one. I reject the submission that, in light of the publicity I have analysed in detail, it is no longer possible to safeguard the accused's right to a fair trial.

115 I have not in these reasons endeavoured to answer specifically every submission made by individual counsel. I will, however, mention briefly those that I consider warrant a specific response. The common theme underlying all the submissions is that the jury, being concerned with a terrorist trial in Sydney, will be likely to find out all they can about any other terrorist trial, whether occurring in Sydney or elsewhere. I do not consider that any basis, beyond speculation, has been established for this proposition. It is just as likely that the voluminous detail of the present trial, and the time and attention the jury is having to give to it in diligent performance of their duties, make it highly unlikely that any of them would want to trawl through publicity about another trial in detail. I accept that they might be interested to note the outcome of a sentencing procedure in Melbourne in a terrorist trial. But I hardly think it likely that their interest would be any greater than that. Counsel's submissions are, in my view, merely speculative. More importantly, they ignore the clear and repeated directions that have been given to the jury to decide this trial on the evidence adduced in these proceedings.

116 Secondly, having considered carefully the images of Benbrika shown in the recent publicity, I am not satisfied that there is any real likelihood that the jury will link that footage with the images they have seen of Sheikh Bakr in The 7.30 Report interview. Similarly, although they have seen brief images of Bakr, Aimen and Fadl at the Formule One Motel at Casula, it must be said that that was a fleeting glimpse a considerable time ago and one not highlighted in any sense at all. Moreover, those particular images were very indistinct and unclear. I rather doubt that the jury would at present remember the fact that the images were shown to them at all. Although the footage was initially admitted into evidence and played briefly to the jury, it was subsequently withdrawn by the Crown as an exhibit and it was marked for identification in lieu, following a request from one of the accused. My recollection is that it was shown for no more than several minutes.

117 Thirdly, the remarks on sentencing made by Bongiorno J in Melbourne were over seventy pages in length. Those portions of it mentioned in the media were very brief and singularly sparse.

118 Fourthly, I accept that it was perhaps regrettable that The 7.30 Report was played to the jury on 28 January 2009, in circumstances where the publicity, after sentence, occurred on 3 and 4 February 2009. This was nobody's fault, as it could not have been anticipated that Bongiorno J would give his decision when he did. (It had been anticipated that the decision would not be given until March or April 2009. Circumstances not relevant to this decision made it necessary for his Honour to give the decision hurriedly, and when he did.) I have taken this point made by Mr Button SC into account. I have considered it carefully but it does not, for the reasons I have given generally, lead to a different conclusion in relation to the application.

Final matters

119 There are two final points to be mentioned. While I consider that the directions that have already been given to the jury are sufficient, I will give counsel the opportunity to address me as to whether any further directions are needed.

120 Secondly, I have made some suggestions during argument about ways and means of the presentation of the Crown's further evidence, so as not to over emphasise the Melbourne connection. While I do not think this is really necessary, it can do no harm if the Crown and the defence endeavour to have a meeting of minds on this issue. I will leave it to the parties to have that discussion between themselves.

Order

121 For all these reasons I have concluded that the application for discharge of the jury should be refused. That is the order I make.

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Citations

Regina (C'Wealth) v Elomar [No 12] [2009] NSWSC 448

Most Recent Citation

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CITATION:	Regina (C'Wealth) v Elomar & Ors [No 12] [2009] NSWSC 448
HEARING DATE(S):	06/03/09
JUDGMENT DATE :	6 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Application to discharge the jury is refused.
CATCHWORDS:	CRIMINAL LAW - Application for discharge of jury - Impact of extensive publicity in another trial - Propensity for interstate publicity to prejudice New South Wales proceedings
LEGISLATION CITED:	Crimes Act 1914 (Cth) Crimes Act 1958 (Vic) Evidence Act 1995 (NSW)
CASES CITED:	Dietrich v The Queen (1992) 177 C293, 362 per Gaudron J John Fairfax Publications pty Ltd v District Court of NSW [2004] 61 NSWLR 344 Re K (2002) NSWCCA 374 at (9) (10) per Beazley JA, Sully and Simpson JJ R v Baladjam [No 19] 28 May 2008 R v Baladjam [N0 59] 10 November 2008 R v Glennon (1992) 173 CLR 592 and 632 R v Petroulias [No 19] BC 200711115 at (40) R v Sheikh 144 A Crim R 124 R v Elomar [No 6] 16 December 2008 at (28-35) Trimboli v Onley [No 3] (1981) 56 FLR 321 Tye v Commissioner of Police (1995) 84 A Crim R 147 per Studdert J
PARTIES:	Regina (C'Wealth) v Mohamed Ali ELOMAR [12] Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohammed Omar JAMAL
FILE NUMBER(S):	SC 2007/2399001; 2007/2400001; 2007/2395001; 2007/2398001; 2007/2452001
COUNSEL:	R Maidment SC; G Bellew SC; C O'Donnell; S McNaughton - Crown D Dalton SC; E Ozen - Accused Elomar D Yehia; S Beckett - Accused Hasan C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho G Scragg; D Carroll - Accused Jamal
SOLICITORS:	C'Wealth DPP - Crown Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Michael Doughty Solicitors - Accused Jamal