Regina (C'Wealth) v Elomar [No 27]

[2009] NSWSC 985

CITATION:	Regina (C'Wealth) v Elomar & Ors [No 27] [2009] NSWSC 985
HEARING DATE(S):	10/09/09
JUDGMENT DATE :	21 September 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
EX TEMPORE JUDGMENT DATE:	11 September 2009
DECISION:	Application to discharge the jury is refused.
CATCHWORDS:	CRIMINAL LAW - Application for discharge of jury - Publicity in an overseas terrorist trial - Whether a real risk of miscarriage of justice - test of necessity - Jurors' adherence to directions
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 Glennon (1992) 173 CLR 592 and 632 R v Petroulias [No 19] BC 200711115 at (40)
PARTIES:	Regina (C'Wealth) v Mohamed Ali ELOMAR [27] 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

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

WHEALY J

PARRAMATTA: MONDAY 21 September 2009

2007/2399001 - Regina v Mohamed Ali ELOMAR [No 27]
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

REASONS FOR JUDGMENT - On application to discharge the jury – Publicity in an overseas terrorist trial – Whether a real risk of miscarriage of justice – test of necessity – Jurors’ adherence to directions

1 HIS HONOUR: On 11 September 2009 I declined to discharge the jury in the present trial. There had been an application to discharge made the previous afternoon. The principal arguments were advanced by Mr Button SC on behalf of his client, Moustafa Cheikho. Three of the other accused (Mr Elomar abstaining) supported the arguments advanced by Mr Button. These are my reasons for decision.

2 There were media reports on Tuesday, 8 September 2009 that a British Court had convicted three men in connection with a plot to blow up a number of transatlantic airliners flying between London and the United States and Canada. There is, of course, no connection whatsoever between the accused in the present trial and those three men. It seems that the jury in the English trial acquitted four other men, also on trial and charged with the same offence. The jury had failed to reach a verdict on an eighth man.

3 I shall quote from selected parts of Exhibit “A”. This is a collection of articles taken from online media reports.

News.com.au said:-

“Prosecutors had alleged that eight Islamic fundamentalists, who aimed to cause death on an unimaginable scale, were directed by masterminds overseas to take bombs disguised as soft drinks on to US and Canada bound planes. The plan involved mixing hydrogen peroxide with food colouring and a powdered soft drink before injecting the mixture into the bottom of soft drink bottles.
Refilled batteries would carry the chemical detonator with the bombs being set off using a charge from a light bulb filament. According to prosecutors, the group had planned to smuggle the bombs aboard flights bound for Montreal and Toronto in Canada and San Francisco, Washington, New York and Chicago in the United States.”

4 The World Today (a current affairs programme broadcast by ABC Local Radio and Radio National) broadcast and placed on the net the following:-

“UK authorities say the conviction of three British men for conspiring to detonate bombs on transatlantic flights is hugely significant. The British Home Secretary said the liquid explosives plot could have killed thousands of people and caused mayhem on an unimaginable scale. The arrests of the men three years ago prompted a tightening of security at international airports worldwide."

5 A subsequent ABC report by Barbara Miller repeated that the plan had been to manufacture liquid explosives using hydrogen peroxide, disguised in drink bottles. The plan was to detonate the bombs in midair on at least seven planes from London to North America. An explosive expert was interviewed who confirmed the seriousness of the effect of the proposed explosion. There were also interviews from London which indicated that witnesses had heard test explosions occurring in their locality in a wood outside London. There was also reference to a suicide video from one of the accused who had said:-

“Osama warned you many times to leave our land or you will be destroyed. And now the time has come for you to be destroyed.”

6 The broadcast also had a voice over which purported to repeat an excerpt from an e-mail that had come from Pakistan in July of 2006 to one of the three accused. The e-mail said:-

“Hi, gorgeous! Well, nice to hear from you. Your friend can go for his rapping concert rehearsal but somewhat popular would be good. Make sure he goes on the bus service which is most common over there.”

7 The radio commentator said the prosecution had argued that this meant the people in Pakistan had given the go ahead for a dummy run to test airport security, and that common bus service meant domestic carrier.

8 There was another e-mail which said:-

“Hi. Got some good news that will bring a smile to your face. I have 15 suppliers to give Calvin Klein aftershave. One box of 50 is only ₤175.”

9 The commentator said that the prosecution had argued that this was a code for the hydrogen peroxide to be used in the explosives.

10 The third download relied upon by the accused in support of the present discharge application was one from yahoo.com containing a report by Alice Ritchie of AAP. This was to the same effect as those I have mentioned above. It also mentioned, however, that Woolwich Crown Court heard that the plot was drawn up in Pakistan and passed on to Ali (one of the London accused) who returned to Britain "to assemble a terror cell, gather material and identify targets.”

11 The material I have set out above comprises the relevant parts of Exhibit “A”. It is to be accepted, however, that there were television reports referring to the matter appearing on SBS News, ABC television and, briefly, on Sky News. Some of the reportage purported to show people preparing the soft drink bombs by injecting the hydrogen peroxide and other materials into plastic soft drink bottles. There were also newspaper reports but they are not in evidence. I accept they may have covered similar territory.

Submissions on behalf of the Accused

12 Mr Button SC submitted that it was not just a matter of this event in London coming to the jury's attention at this late stage of the trial, although, counsel said, it was a striking incident involving, as it did, a plan to blow up a number of planes passing between London and North America. Rather, senior counsel relied on five “striking” similarities between the London trial and this present trial. Mr Button said that the similarities were of such a striking kind that they could almost lead the jury to regard the overseas event as some sort of tendency evidence connected to the allegations in the Sydney trial. The five “striking” similarities were said to be as follows:

13 First, the central role of hydrogen peroxide as the primary ingredient in the explosives in the London plot. Secondly, the use of a light bulb filament as a detonator. Thirdly, the reference to refilled batteries carrying the chemical detonator. Fourthly, the use of coded communications of the kind I have described above. Finally, there was the allegation that one of the offenders had attended Pakistan and brought back with him the plan to enable him to assemble a terror cell and identify targets.

14 In the light of these alleged "striking similarities", Mr Button SC made three specific points. These were:

First, the “striking similarities” were of such a kind that the jury could not help but infer that the allegations in the Sydney trial came from the same book or manual on how to engage in a terrorist act. It was not just a matter of another event being reported, counsel said, it was a matter of very specific and very prejudicial similarities.

Secondly, Mr Button SC argued that the present application had to be seen in the context of all that had preceded it in the eleven months or so since the jury was first empanelled. The most important of those matters was the Mumbai atrocity that had featured in media reports and the repeated reference in those reports to the involvement of LeT and Pakistani terrorists. Mr Button reminded the Court that two Australians had been killed in that massacre. Reference was also made to the Jakarta bombings which occurred during the currency of the trial; the reporting of the plea of guilty to a terrorism offence by one Shane Kent in Victoria, reports of the Melbourne raids upon a number of Somalian men in more recent times; an article in The Sun Herald referring to the convicted terrorist Lodhi and the man Willie Brigitte, including an assertion that Lodhi had ordered chemicals in a false name and the notoriety given by the press to the convictions of a number of Melbourne men, including the cleric Abdul Benbrika. Finally, reference was made to a “problem” that arose in the trial many months ago when a supporter of the accused had apparently acted in a somewhat intimidating manner towards some members of the jury as they made their way to their motor vehicles. The point Mr Button made was that the present publicity relating to the London trial might be seen as the culmination, as it were, of all that had happened in the past during the Sydney trial. It was, he said, the “last straw”.

Thirdly, senior counsel made special mention of the fact that the Court should not confine its considerations to the printed form of the media, but should recognise the fact that many people today receive their daily consumption of news from material published on the Internet.

15 Mr Button accepted, of course, that the appropriate legal principles place a high hurdle in relation to the present application and that the Court would be entitled to take into account the timing of the present application as a factor strongly against the discharge of the jury.

Submissions of the Crown

16 Mr Maidment SC pointed to the fact that the present jury had been instructed on a number of occasions to confine their attention to the evidence in the trial. They had been specifically directed not to pay attention to any media reporting of the trial. In particular, the jury have been instructed on a number of occasions to put out of their mind altogether any reference to terrorist activities occurring either in this country or overseas and to focus only on the evidence in the trial. Senior counsel said that it would require a very cynical view of an Australian jury to think that they would not be capable of following the directions that had been given clearly and repeatedly throughout the trial. Moreover, Mr Maidment said it was an extraordinary proposition that a jury would be likely to be influenced in any way by events taking place on the other side of the world, even allowing for the similarities that the defence had drawn to the Court's attention.

17 The Crown also argued that a proper evaluation of the situation should lead to a clear conclusion that the jury, in all the circumstances, and indeed taking into account all that had gone before in terms of the contextual matters relied upon by Mr Button, would be capable of putting this most recent matter to one side in the same way as they had been able to put all the earlier matters to one side. The jury would be able to do this not only individually, but collectively. The jury would be able to treat the present trial on its merits, that is by having regard only to the evidence that is properly admissible in the trial. Finally, Mr Maidment SC argued that the present application did not come even close to the level of necessity that being the appropriate test to be applied in the circumstances.

Principles to be applied on the application

18 There is no dispute between the parties as to the principles applicable in the present situation. It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair hearing according to law (Dietrich v The Queen (1992) 177 CLR 293, 362 per Gaudron J). Although the Court should be slow to stay proceedings or to discharge a jury, in an appropriate case, the Court should not refrain from taking either step (R v Glennon (1992) 173 CLR 592, 623 per Deane, Gaudron and McHugh JJ; see also the Victorian Court of Appeal judgment upholding the trial judge's order restraining publication of the television series "Underbelly": General Television Corporation Pty Limited v DPP [2008] VSCA 103.

19 It is not necessary for the accused, in a discharge application, to demonstrate that he or she would not have a fair trial. It is sufficient if there is a real risk of prejudice if the trial were to continue (Re K (2002) NSWCCA 374 at (9)(10) per Beazley JA, Sully and Simpson JJ). In that case the Court found there had been “an unacceptable risk” (para 18) and that there would be a "real risk" if the trial were to proceed immediately following the pronouncement of the Court's decision.

20 Courts will assume that the jury, properly instructed, will accept and obey the directions of the trial judge to decide the case solely on the evidence placed before it during the trial. As Johnson J noted in R v Petroulias [No 19] BC200711115 at (40) - a judgment involving a stay application:-

“There is an increasing body of judicial opinion to the effect that whatever pre-trial publicity exists, jurors, when they take on the solemn responsibility of the performance of their duties in the courtroom, differentiate between gossip, rumour, news and opinion which they hear before the case and the evidence which they hear in the Court in the trial for which they are empanelled. A question remains in each case where the intensity, proximity and nature of the media coverage of the particular accused, or the particular circumstances, is such as to occasion the risk of unfairness to the accused so as to prejudice the accused's right to a fair trial for a time after the publicity. A judgment is called upon in each case having regard to the particular facts which are proved: R v Yuill (1993) 69 A Crim R 450 at 453-454."

21 I would venture to suggest that similar considerations arise in an application such as the present, where the publicity is directed not to the accused, but where it relates to persons who have no connection whatsoever to the accused.

22 In R v Glennon, Mason CJ and Toohey J at 603 observed that the possibilities that a juror might acquire irrelevant or prejudicial information is inherent in a criminal trial, and continued:-

“The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J observed in Hinch (1987) 164 CLR at 74, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them.”

23 In John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344, Spigelman CJ (Handley JA and M Campbell AJA agreeing) said at 366 (102-103):-

“As set out above his Honour expressed his concern that a future trial judge could not effectively ensure a fair trial by giving the jury directions, particularly as this may highlight the issues which establish the possibility of prejudice. In this regard, in my opinion, his Honour was proceeding on a basis which has, in recent years, come to be rejected by the Courts in relevantly analogous case law.
There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions they are given and implement them. In particular, that they listen to the direction that they are to determine guilt only on the evidence before them.”

24 The "test of necessity", accepted by the parties in the present matter as being applicable to the resolution of this application, was stated recently by the Court of Criminal Appeal in R v Crowther-Wilkinson (2004) NSWCCA 249. In that case two interlocutory judgments by the trial judge (Hidden J) had been published on the Court's website during the trial. The first was an application for a separate trial, and the second concerned the admissibility of a statement made to police. The Court determined that there had been no miscarriage of justice and that there was no warrant for the discharge of the jury. Included in the Court's reasoning was the fact that there was no evidence to suggest that any member of the jury had actually accessed the Internet to scrutinise the two judgments. Secondly, the jury had been given an instruction to consider the evidence impartially and rationally, and directed to make a decision based only on the evidence. Thirdly, the case against the appellant was absolutely compelling, such that his conviction would have been inevitable.

25 In the course of giving the leading judgment, Wood CJ at CL (with whom Dowd and Kirby JJ agreed) said at paras 203 to 208:-

“203 There have obviously been cases where it has been considered necessary to halt a trial mid stream, where that kind of publicity has been particularly prejudicial. The principle which has been established in relation to this kind of event and other prejudicial happenings, is one of necessity; that is, there has to be a “high degree of need”, in order to avoid a miscarriage of justice, before a discharge will be ordered: Crofts v The Queen (1986) 186 CLR 427 at 432.
204 In most instances, it has been accepted that sufficient directions can be given to overcome the problem, since it has been recognized that jurors can be trusted to obey the directions that they are given: R v Bell NSWCCA 8 October 1998, Glennon v The Queen (1992) 173 CLR 592 at 603, Hinch v Attorney General(Vic) (No. 2) (1998) 164 CLR 15 at 74, Murphy v The Queen (1989) 167 CLR 94 at 99, R v Yuill (1993) 69 A Crim R 450 at 453/4, and R v Loguancio (2000) 1 VR 235 at para 24.
205 This is an important assumption, which underpins the retention of jury trials (see R v Gilbert (2000) 201 CLR 414 per McHugh J at para 31). I do not believe that it has been fatally flawed by the experience in the two recent cases decided in this State to which I will later refer ( R v K [2003] NSWCCA 401 and R v Skaf [2004] NSWCCA 37).

206 The authorities concerning prejudicial publicity tend to suggest moreover that the mere possibility of a juror having acquired prejudicial or extraneous knowledge, during a trial, is not normally a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice.
207 For example, in Glennon , Mason CJ and Toohey J said at 603:
’Likewise, the suggestion that there was a substantial risk that at least one juror would have acquired knowledge, before the verdict was given, of the respondent's prior conviction was again a matter of mere conjecture or speculation. The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial.’


208 In Murphy v The Queen (1989) 167 CLR 94, Mason CJ and Toohey J said at 99:
‘…it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appeal in R v Hubbert (1975) 29 CCC (2d) 279 at 291:
'In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence.'”

26 Crowther-Wilkinson, and a number of the authorities referred to in it, essentially deal with the situation where there has been prejudicial publicity concerning the matters directly involved in the particular trial. Often this will take the form of sensational media reporting of the allegations against a particular person in relation to a serious crime at a time prior to the commencement of the trial. It may take the form of inaccurate reporting during the currency of the trial. In either case, the situation is rather different from the present one where the reporting deals with a topic similar to that involved in a current trial, but is not suggested to be publicity about the accused themselves or their involvement in the crime with which they are charged. In any event, as I have said, the parties are in complete agreement as to the principles applicable to the resolution of the matter.

Resolution of the issues

27 The first point is to decide whether it is likely that any members of the jury would have seen the particular news reports either on television or in the newspapers. Would any member of the jury have heard reports about the London convictions on the radio? Would they have encountered the publicity on the net, or in any other electronic form? The answer to that question is really quite uncertain. There is no evidence on the point. It is impossible to be certain that they would not have seen something of the news in one form or another, but there is simply no evidence from which one could conclude that it was seen, scrutinised in detail, examined or likely to have been, in any sense, embedded in the consciousness of any individual juror. Barely a month has gone past in this trial when there has not been some terrorist outrage in a country or countries overseas. Indeed, as Mr Button pointed out, there have been at least two instances where terror-related arrests or convictions have been publicised concerning to events in Australia.

28 There is no particular reason, in my view, to accept that the media information I have summarised would have been scrutinised in the way it has been by the lawyers for the accused. Their attention to the detail of the articles has been very similar to the type of approach taken by defamation lawyers to media publications. The simple truth of the matter is that our media information is replete, on a daily basis, with outrages of many criminal kinds. This extends, as I have said, on a fairly regular basis, to terrorist related activities or reports. It is a sad reality of contemporary existence.

29 But if I be wrong about this preliminary aspect of the argument, I do not, in any event, think that the "striking similarities" argument has the force suggested by Mr Button SC in his careful arguments. I will endeavour to explain why this is so.

30 The first proposition is that although there are obvious similarities, there are major differences between the London plot and the allegations made in the present case. In the London situation, a group of Pakistani men, it appears, had determined upon a precise plot to bring down a number of transatlantic flights. The plan was so advanced that a test run had been undertaken, it seems, on a domestic flight. Further, the precise method of detonation of the explosives on the planes had been selected and thoroughly tested at ground level. By contrast, in the present trial, there is no suggestion that any of the accused had ever identified a target or targets. There is no mention of aeroplanes or of explosives in connection with any target whatsoever. There is no suggestion in the present trial that it had been determined who would carry out any proposed terrorist act or acts. The Crown case falls well short of suggesting that the accused, or any of them, were to be the bombers themselves. Certainly, the Crown case stops short of suggesting that any decision had been made that any of the accused would be the bombers and, as I have said, no target or targets had been selected. There was not the slightest suggestion in the present case, as I have said, that the ultimate aim of the collection of any chemicals or ammunition was the destruction and death of passengers on aeroplanes.

31 Another major difference is that, in the London trial, there was a video of one of the accused making plain his intentions that he was going to be involved in the death of innocent civilians. It was made plain that he would undertake this devastation because of the failure by America and its allies to heed Osama bin Laden's warning to leave Muslim lands.

32 Again, by way of contrast, in the present trial, there is no evidence, by way of TI or LD, to suggest that any of the accused themselves has been captured making what was called in the media reports "a suicide video". There is no discussion, as the defence have pointed out to the jury, which mentions a plan or proposal to bomb any target in Australia or overseas. There is indeed no direct reference to the offence alleged in the indictment.

33 The third and most important difference is that each of the accused has put a case to the jury in the present trial stressing that he was not a participant in any enterprise to undertake or do acts in preparation for a terrorist act or acts. The defence case of each man is that, even if there were some type of criminal enterprise of the kind alleged by the Crown in the indictment, he, certainly, was not a party to such an enterprise. For example, the accused Hasan gave evidence before the jury that his ordering and/or collection of chemicals was undertaken innocently, at the behest of another man who he believed was endeavouring to raise money to send funds overseas to Muslim charities. Hasan's evidence was that his involvement in the ordering of laboratory equipment was to help another friend establish or enlarge an organic products business. None of the other accused gave evidence. But the case of Elomar, Jamal and Khaled Cheikho fastened, to one degree or another, upon the evidence given by Hasan. Moustafa Cheikho's case was simply that he had no involvement in any such criminal conspiracy. Each accused argued that the Crown had simply failed to prove beyond reasonable doubt that he was a participant in the alleged criminal conspiracy. The defence case was placed strongly and unequivocally before the jury in the closing submissions of all counsel.

34 As to the particular "striking similarities" the following may be observed:

35 First, it is true that there is an allegation in the present trial that hydrogen peroxide was acquired for the purposes of the alleged conspiracy. Of the accused, it is only Moustafa Cheikho who is alleged to have purchased hydrogen peroxide at a suburban Sydney pharmacy. This allegation is flatly denied and there is a very live issue as to the reliability of the young lady who purported to identify him as the purchaser. The hydrogen peroxide purchased on that occasion was found behind the premises of Khaled Sharrouf. He is one of the alleged conspirators, but he is not on trial in the present proceedings. He is not one of the accused. It is not suggested he was the purchaser. It is not suggested any of the other four accused was the purchaser. The Crown case has not sought to rely upon the co-conspirators' rule. Rather, the Crown case relies only on the conduct and words of each individual accused as being the evidence of participation in the alleged conspiracy. It is also true that Moustafa Cheikho had four bottles of hydrogen peroxide at his home when he was arrested. An innocent explanation, however, was given for this before the jury.

36 The second aspect of similarity was said to be the use of a light bulb filament as a detonator. True it is, once again, that there is an allegation that Moustafa Cheikho possessed a tool kit with cut off fairy lights in it. There was also information on his computer that might be said to show an interest in detonators using an ohmmeter, et cetera. Khaled Cheikho was also said to possess material that showed an interest in basic electronics but it was, overall, rather muted evidence.

37 The third matter was said to be a reference to "battery refills". Again, it is true that the Crown allegation is that battery acid was being purchased for the purposes of the conspiracy. In the London trial, however, although the information is sparse, it would seem that miniature batteries were likely to have been the repository for a chemical detonator. As I say, in the Sydney trial, the Crown alleges that the battery acid was being used with a view to it being used in the making of an explosive. But neither the nature of the ultimate bomb, nor its final composition, was said to have been selected.

38 The fourth matter was the coded messages. The Crown does rely on coded messages in the present case, but suggests that they related simply to the organisation of covert meetings so that materials in connection with the conspiracy could be concealed or hidden from the authorities. There is a significant difference in this from the London situation. In the London plot, the coded messages were specifically to do with the bombing of transatlantic planes. The fact that the opening words of the messages contained false expressions of endearment would not, in my view, reveal a “striking similarity” between the London situation and that alleged in the Sydney trial.

39 The final matter was the allegation in London that one of the offenders had attended Pakistan and brought back with him a plan to assemble a terrorist cell, gather material and to identify targets. There is evidence in the Sydney trial that Moustafa Cheikho attended an LeT training camp in Pakistan in 2001. He denies this and there is a very live issue as to the reliability of the identifying party, and indeed, his truthfulness. The evidence is, however, strictly confined to the case against Moustafa Cheikho. The jury have been told that they cannot use that evidence, even if they accept it, in any way against any of the other men. The consequence of this is that there is no suggestion in the trial that Moustafa Cheikho “brought back” with him any plan to undertake terrorist activities in Australia, let alone a suggestion that such a plan was part of, or central to the alleged conspiratorial task. Moreover, the jury have been told that they cannot use the evidence of Moustafa Cheikho's training in Pakistan, if they find he it was he, as a evidence of any tendency on his part to commit the crime in the indictment. The jury has been told that it is no more than a piece of circumstantial evidence to be assembled, along with other matters relating to Moustafa Cheikho, in their determination as to whether the Crown has proved its case against him beyond reasonable doubt. I suggest that there are very marked dissimilarities between this situation and that referred to in the reporting of the London plot.

40 I have thus far evaluated, as it were, the force of the "striking similarities" argument. I accept it has some substance in it. But it does not carry the weight and texture attributed to it by Mr Button. My view is that, even if the jury had read, seen or heard any of the media reports on the London plot, they might have noticed some similarities, but they would have been able to appreciate immediately the significant range of differences.

41 This leads me to the final point. In my view, the Crown's principal submission is entirely correct. This jury has been instructed on a number of occasions, where it has been necessary to do so, that they are to pay no attention to any media reports of incidents occurring either in Australia or overseas that have a terrorist connection or connotation. They have been told, tactfully but forcefully, that the trial is to be determined only on the evidence that is heard and seen in the courtroom. In my view, this jury has been responsive at all times to these directions. They are, I suggest, well drilled and well regimented into understanding and acting in a way that enables them to put out of their mind matters that are extraneous to the evidence in the trial. I have not the slightest doubt that they will do so in relation to the reporting relating to the transatlantic jet bomb plot. The jury will heed the directions that have been given and will decide this case on the evidence that is before them.

42 The final matter I should mention is that the trial has been going, as I have indicated, for nearly eleven months. This is not to say that, in an appropriate situation, the Court would hesitate from discharging a jury. Obviously the Court would be reluctant to do so after so many months of trial. But if there were a real risk of a miscarriage of justice, the Court would be obliged to accede to a discharge application, notwithstanding that the trial had been going for a very long time.

43 It will be clear from the reasons I have given, however, that I do not think there is any prospect that a miscarriage of justice has occurred or will occur here. I am perfectly satisfied that this jury will honour its oath and decide the case in accordance with the evidence. It will be able to put out of its mind, individually and collectively, as it has done in relation to any other incidents that have occurred during the trial, the recent spate of media publicity. There is no need, indeed no necessity, to discharge the jury in the present circumstances.

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