New South Wales Supreme Court CITATION : Regina (C'Wealth) v Baladjam & Ors [No 19] [2008] NSWSC 1441 HEARING DATE(S) : 19/05/08; 20/05/08 JUDGMENT DATE : 28 May 2008 JURISDICTION : Criminal JUDGMENT OF : Whealy J at 1 DECISION : I decline to exclude the evidence described as "Melbourne" evidence. CATCHWORDS : CRIMINAL LAW - Principles applicable to evidence in a conspiracy trial - Common law principles not over thrown by Evidence) Act 1995 - s 57(2) and s 87(2) - CRIMINAL LAW - Relevance and exclusion of evidence under s 137 of Evidence Act 1995 Evidence Act 1995 Trade Practices Act Criminal Code (ACT) LEGISLATION CITED : Criminal Code Act 1995 Quarantine Act Road Transport (Alcohol & Drugs) Act Telecommunications (Interception) Act 1979 Ahern v R (1988) 165 CLR 87 at 100, 103 Australian Competition & Consumer Commission v Leahy Petroleum pty Ltd & Ors [2007] 160 FCR 321 Gillies "The Law of Criminal Conspiracy" 2nd Edition, Chapter 13 page 176 Jackson v TCN Channel 9 Pty Limited [2002] NSWSC 1229 (at 40, per Adams J) Caratti v R [2000] 157 FLR 241 MacIlwaine v Ramsay Food Packaging Pty Limited [2006] FCA 828 Masters v R (1992) 26 NSWLR 450 at 461 CASES CITED : Smith v The Queen [2001] 206 CLR 650 at (6) Tripodi v R (1961) 104 CLR 1 at 6-7 R v Baladjam & Ors [No 11] unreported 16 April 2008 R v Chai (1992) 27 NSWLR 153 R v Hayter [2005] 1 WLR 605; [2005] UKHL 6 R v Louden (1995) 37 NSWLR at 683 R v MacRaild (unreported) NSWCCA, Sully, Dunford and Simpson JJ R v Masters & Wunderlich (1992) 26 NSWLR Regina (C'Wealth) v Omar BALADJAM [No 19] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR PARTIES : Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA FILE NUMBER(S) : SC 2007/2397001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001 Ms W Abraham QC; G. Bellew SC; C. Donnell; Ms S McNaughton - Crown M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; E Ozen - Accused Elomar COUNSEL : Ms D Yehia; Ms S Beckett - Accused Hasan G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; P King - Accused Touma Commonwealth DPP Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho SOLICITORS : Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST WHEALY J PARRAMATTA: WEDNESDAY 28 May 2008 2007/2397001 - Regina v Omar BALADJAM [No 19] 2007/2395001 - Regina v Khaled CHEIKHO 2007/2398001 - Regina v Moustafa CHEIKHO 2007/2399001 - Regina v Mohamed Ali ELOMAR 2007/2400001 - Regina v Abdul Rakib HASAN 2007/2452001 - Regina v Mohammed Omar JAMAL 2007/2454001 - Regina v Mirsad MULAHALILOVIC 2007/2396001 - Regina v Khaled SHARROUF 2007/2455001 - Regina v Mazen TOUMA JUDGMENT - Application to exclude "Melbourne evidence" 1 HIS HONOUR: This is an application brought on behalf of the accused generally. The application seeks to exclude from the trial material, which has been referred to as "the Melbourne evidence". 2 Mr Dalton SC presented the principal argument on behalf of his client, Mr Elomar. Generally, however, he was supported by all other defence counsel in relation to his principal submissions. In addition, Mr Dalton was supported by separate submissions from Ms Yehia. Those submissions were made on behalf of her client, Mr Hasan. Ms Yehia's submissions were also supported by other counsel. 3 Mr Buscombe made a brief submission on behalf of his client, Omar Baladjam. This too was a general submission that was shared by others. 4 By way of contrast, Mr Waterstreet made submissions that were primarily directed to the position of his client, Khaled Cheikho. Mr Scragg took this position as well on behalf of his client, Mr Jamal. I will include in this decision references to the submissions made on behalf of Khaled Cheikho and Jamal. It may be assumed, however, that in general much of the tenour of this decision will be applicable to the separate submissions made regarding those two accused men. The Melbourne group 5 It may be convenient if I set out in a general way the nature of the "Melbourne evidence" and the way in which the Crown says it should form part of the case against each of the accused at trial. 6 The Melbourne group comprised a number of men who are presently on trial in Melbourne in relation to charges of belonging to a terrorist organisation. One of those defendants is a Melbourne cleric named Abdul Benbrika. It is said that he was an Islamist who had publicly declared his support for militant or violent jihad. It will be alleged in the Sydney trial that Benbrika communicated with certain of the present accused. It will be alleged that, in Sydney, this contact was often covert in nature, involving, for example, airline travel being booked in false names. Benbrika had regular contact with a number of the Sydney accused, although, admittedly, his principal regular contact appeared to have been with Khaled Sharrouf. The Crown wishes to lead evidence of conversations intercepted on his telephone service, and in listening devices, in which extremist language and notions were used or discussed. 7 Others of the Melbourne group who adhered to Benbrika's extremist views included Atik, Joud, Raad and Sayadi. The Crown case is that these men communicated with certain of the accused in Sydney. Again, the contact was often covert in nature involving the use of covert and public telephones, and involving airline travel being booked in false names. The Crown case is that Benbrika and Joud maintained regular contact with Hasan, Elomar, Sharrouf, Moustafa Cheikho, Khaled Cheikho and Jamal. 8 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) On 29 December 2004 at 8.56am Hasan visited Benbrika in person, urgently, having been stopped and searched by police in the vicinity of Lucas Heights the day before. (e) 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." (f) 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. (g) 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. (h) 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. (i) 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. (j) 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"). (k) 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. (l) 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. (m) 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. (n) There was a further visit on 31 October 2005. Benbrika came to Sydney Airport where he was collected by Moustafa Cheikho and Sharrouf. He gave a lesson on that day. Relevance of the evidence to the Crown case 9 The Crown, in its submissions, has identified the essential elements of the offence charged against each accused in the present matter. The Crown argued that evidence of the kind identified in the examples given above is relevant to the fact and nature of the conspiracy. It is relevant to the intention of various of the accused in undertaking activities in furtherance of the conspiracy. It is also relevant to the defence case likely to be raised, namely, that the actions of the individual co-conspirators may reasonably be explained in an innocent fashion and without reference to violent jihad. 10 With that type of reliance in mind, the Crown has argued that the accused undertook activities in furtherance of the conspiracy against a background where, amongst other things: (a) They were receiving advice and inspiration from Benbrika who supported - promoted violent jihad; (b) the accused were being supplied by Benbrika and others with extremist material, including instructional material; (c) the accused were assisted by Benbrika and Joud in their attempts to obtain large quantities of laboratory equipment. 11 The Crown acknowledged that the character of the activities that were undertaken by each of the accused, and whether or not they support the inference of the conspiracy as alleged by the Crown, is obviously to be a matter of serious contest in the trial. The Crown argued that the circumstances in which these activities were being undertaken (including the Melbourne evidence) was relevant to support the inferences contended for by the Crown. 12 The Crown argued that the nature, context and circumstances of the accused's contact with Benbrika, and with others who shared his views, was highly probative. The Crown argued that Benbrika was being contacted regularly as an important source of extremist religious inspiration and advice, at a time when the accused were actively sourcing materials consistent with an agreement to do acts in preparation for a terrorist act or acts. 13 The Crown argued that, in general terms, the Melbourne evidence was admissible against all the accused to prove the existence, scope and nature of the conspiracy. Further, it contended that some aspects of the evidence were admissible to prove the participation of the accused in the conspiracy. The Crown argued that, in accordance with established authority, the admissibility of the evidence on the first basis was circumstantial evidence and did not infringe the hearsay rule (Ahern v R (1988) 165 CLR 87 at 100, 103; Tripodi v R (1961) 104 CLR 1 at 6-7; Masters v R (1992) 26 NSWLR 450 at 461.) 14 In relation to the second basis of admissibility, the Crown argued again in accordance with established authority, that if there were reasonable independent evidence of an accused's participation in the conspiracy, and the evidence sought to be tendered was the acts of a co-conspirator in furtherance of the conspiracy, it would be admissible against the accused to prove his participation in the conspiracy, even though he was absent or not present at the time. In relation to this aspect, the Crown submitted that the appropriate time for the trial Judge to determine if there was reasonable evidence of preconcert was at the conclusion of the Crown case. 15 Although the Crown did not entirely agree with the manner in which the defence submissions "truncated" the Melbourne evidence for the purposes of analysis, and suggested that that approach ("dealing with each aspect of the evidence in isolation") was incorrect, the Crown, for the purposes of argument, made its analysis in accordance with the sequence suggested by Mr Dalton's submissions. The Crown, however, made the point that the relevance of the Melbourne evidence fell to be determined by considering it in the context of the entire Crown case. For example, Mr Dalton dealt with evidence relating directly to "overt acts" as a separate topic from evidence not so described (this was referred to by Mr Dalton as "annexure 2" material.) The Crown pointed out that some of this evidence, although not characterised as an overt act or acts, was nevertheless evidence admissible of acts done in furtherance of the conspiracy. Submissions made by Mr Dalton on behalf of Elomar and adopted by the accused generally 16 It will be convenient if I now turn to the submissions by Mr Dalton. Mr Dalton's submissions were predicated upon three assumptions. First, there was the assumption that the Crown adhered to its stated position that none of the Melbourne group were co-conspirators with the accused in relation to the Sydney conspiracy. Secondly, there was the assumption that the "overt acts" listed as part of the Crown case statement were all of the acts and declarations of the alleged conspirators (and/or their agents) which had been made in furtherance of the alleged conspiracy. (As I have indicated above, the Crown did not accept the accuracy of this second assumption.) Thirdly, the submissions were predicated, admittedly prematurely, on the basis that the co-accused Sharrouf was likely to be found unfit to be tried and would not face trial jointly with the other co-accused. (This is a reference to a fitness hearing which was scheduled to take place (and in fact did take place) on 9 May 2008. It was a matter of common understanding at the time the submissions were made, that psychiatric evidence assembled by the Crown and the legal representatives for the accused Sharrouf was in agreement as to his unfitness to be tried at this time). 17 Against the background of these assumptions, Mr Dalton's submissions divided the evidence into a number of categories. First, there were those parts of the evidence, which had been particularised as "overt acts". Secondly, there were those parts of the Melbourne evidence, which did not fall into this category. These were described by counsel as the matters appearing in "annexure 2" to his written submissions. 18 The third category of evidence related to the documents found on Joud's computer in the search of his premises on 17 September 2004. Finally, there was evidence relating to the visit by some of the accused to Lucas Heights on 28 December 2004, and to its suggested connection with Benbrika on the following day. The overt acts 19 Mr Dalton specifically addressed in his written submissions Overt Acts 10, 12, 19 and 20, 21 and 26. In oral submissions, Mr Dalton addressed other factual matters in the Crown case statement that were said by the Crown, during the course of its written submissions, to be admissible as acts done in furtherance of the conspiracy. The thrust of Mr Dalton's submissions in relation to the overt acts may be well understood against the background of his argument regarding overt acts number 10, 19, 20 and 21. The subject matter of the evidence relating to these matters embraces the Haines chemical topic. On 23 February 2005, Hasan and Sharrouf discussed an order for laboratory equipment from the Haines company; on 4 May 2005, Hasan and Elomar discussed the preparation of an order for laboratory equipment from the same company; on that evening Hasan, Elomar, Sharrouf, Joud and Benbrika further discussed the preparation of the order; and on 2 June 2005 the order was placed. 20 The fact and contents of these conversations, involving various of the accused with the Melbourne men, was not, for present purposes, challenged. It was accepted that it might be both relevant and admissible. Mr Dalton, however submitted, that the identification of Benbrika and other members of the Melbourne group was of minimal probative value and that its probative value was clearly outweighed by its unfair prejudicial effect. So too with the geographical location of the Melbourne group. The prejudicial effect that was said to arise from the identification of those persons would be its capacity to establish in the jury's mind that they were the unconvicted but charged members of a terrorist organisation in Melbourne. (Mr Dalton provided the Court with a volume of media reports concerning the Melbourne men and their trial. As I have indicated, the trial is underway at the present time, although it may conclude in June/July 2008.) 21 Mr Dalton made a subsidiary point in relation to the conversations surrounding the Haines' discussions. In particular, he said that extremist statements made by Benbrika during those discussions were not in furtherance of the conspiracy and therefore not relevant. Alternatively, he argued that they should be excluded pursuant to section 137. Again, the main area of unfair prejudice was said to reside in the identification of Benbrika as a terrorist on trial albeit, at this stage, unconvicted. 22 In relation to the covert nature of Benbrika's travel to Sydney, Mr Dalton argued that there was no evidence that any of the accused knew of this situation. He argued that Benbrika may have had his own reasons to engage in "covert movements", quite separate from any consideration relating to the present offence. Indeed, he may have simply wished to avoid undue media attention. 23 In relation to the other overt acts, Mr Dalton said this: First, the documents found on Joud's computer, during the search of his premises, could not, he argued, be said to be in furtherance of the subject conspiracy. For that reason, they were not relevant and should be excluded. Secondly, the visit to Lucas Heights was not pressed by the Crown as being a visit in contemplation of a terrorist attack upon the nuclear reactor. Consequently, the reference to Lucas Heights should be excluded as it was, in any event, quite prejudicial. Counsel suggested that an agreement could be reached between the Crown and the accused as to an admission, or agreed state of facts, which would serve the purpose of the Crown case, without bringing in the damaging and unnecessary reference to Lucas Heights. 24 Another matter referred to by Mr Dalton in the present context was the trip to Curranyalpa. Again, for present purposes, Mr Dalton accepted that the evidence had been held to be relevant to the Crown case. He insisted, however, that the identification of the three Melbourne men who attended, was not in any way relevant. If it were, they could simply be referred to in some way that would not identify them as persons on trial in Victoria for terrorist offences. 25 The final matter addressed in oral submissions related to the additional overt acts identified by the Crown in its written submissions. Here, the submission was there was no real link at all between the activities of the accused in October/November 2005 and the material found at Mr Joud's premises in September 2004. If there were held to be such a link, again counsel suggested that the identity of the Melbourne men should not be disclosed to the jury. Annexure 2 Arguments 26 Mr Dalton made a series of very detailed submissions regarding the listening device material and the telephone intercepts. Generally his point was that the matters identified in annexure 2 were not acts in furtherance of the alleged conspiracy. For that reason, he argued that they were not relevant as to the existence or scope of the conspiracy. Nor were they admissible pursuant to the co-conspirators' rules. Again, in a general way, Mr Dalton submitted that the only relevance of the statements in some of the conversations was as to the possible state of mind of the individual speaking, or perhaps listening to the conversation. 27 Secondly, in relation to annexure 2 matters, Mr Dalton submitted that any discussions between Benbrika and Sharrouf should be excluded altogether. This was because it might be safely assumed that Sharrouf would not be tried jointly with the other accused because of his mental condition. 28 In the alternative, Mr Dalton again submitted that, were any of the conversations to be admitted, they should be the subject of an admission or agreed statement which would permit the Crown the benefit of the minimal probative value of the evidence, but avoiding the prejudicial effect of the same by excluding the actual names and geographical location of the Melbourne group. Ms Yehia's submissions 29 Ms Yehia provided written and oral submissions on behalf of her client, Hasan. Generally, Ms Yehia took up a similar position to Mr Dalton in relation to those matters that might be described as relating to the overt acts, for example, the Haines order and the Curranyalpa camp. Ms Yehia, however, made a number of discrete points about the annexure 2 material in Exhibits "A", "B" and "C" on the voir dire (the listening device material, telephone intercept material and the material seized from Joud's computer). 30 Ms Yehia's starting point was a table or chart, which had been prepared by her team. The object of this chart was to demonstrate how many of the conversations were between Mr Sharrouf and Melbourne people; and how few there were between her client (or for that matter any of the other accused) and the Melbourne people. For example, the telephone intercepts reveal that out of 116 calls, 98 fell into the category of conversations between Mr Sharrouf and one or other of the Melbourne people. Only 11 of the 116 calls were between one or other of the Sydney men and one or other of the Melbourne people. In fact, there were a couple of calls that were only between the Melbourne people themselves and did not involve the Sydney accused at all. 31 Against the background of this analysis, Ms Yehia made a number of discrete points. First, counsel cautioned that, although the Crown suggested that the material would show the Melbourne men providing the Sydney accused with extremist and instructional material, this was not necessarily the case. In particular, counsel argued that there was no real identification of the videos and other material that were referred to in the intercepts. Simply because a video or book might be of a religious nature, did not mean that it was extremist, that is, material that promotes or encourages violent acts. There was, for example, reference to a video movie "The Prophet's Life". There were also discussions about the life story of Umar al-Khattab, a caliph who reigned in the year 634 to 644. 32 Secondly, Ms Yehia challenged whether it was accurate to say that the conversations disclosed Benbrika being used as a source of advice or inspiration to the Sydney accused. Counsel argued that a close inspection of the contents of the calls revealed the conversations to be instances of Mr Sharrouf seeking advice from Mr Benbrika. True it was advice of a religious type, but it was personal to Mr Sharrouf's situation. Thirdly, Ms Yehia challenged whether it could be said that instructional material was passed from the Melbourne men to the Sydney group. Apart from the Joud material, about which there was no evidence it was ever seen by the Sydney men, there was no other evidence of instructional material being provided or exchanged. 33 The final discrete point made by Ms Yehia was that the covert nature of Benbrika's trips to Sydney might also be explained by the fact that the trips were organised by Atik. There is material that shows that he was engaged in the theft of personal identities and also involved in credit card fraud on quite a large scale. 34 Overall, Ms Yehia highlighted the fact that her client had little to do with these conversations, especially when they were viewed in their entirety. Counsel submitted that all of this material under present discussion failed to provide the type of background that would explain or illuminate the overt acts relied on by the Crown. The most that they showed, if they showed anything at all, was something as to the state of mind of Mr Sharrouf on occasions. There was nothing, for example, to show that Mr Hasan had adopted the "maximum damage" outburst by Benbrika in February 2005. In her concluding submissions, Ms Yehia adopted Mr Dalton's submission concerning s 137 of the Evidence Act. More broadly, however, she submitted that the intercepts really showed Mr Sharrouf acting on his own in relation to a separate and distinct relationship he had with the people from Melbourne. Mr Buscombe's submission 35 Mr Buscombe made a brief submission. It was to the effect that no inference at all could be drawn from the fact that there were certain activities engaged in by his client, Mr Baladjam, and Mr Mulahalilovic in early November 2005, which could, in reality, be related to the material seized from Mr Joud's premises. Counsel highlighted the fact that Mr Joud is not said to be a member of the Sydney conspiracy. Secondly, the only contact between Mr Joud and any of the alleged Sydney group, prior to 17 September 2004 when the seizure occurred, was a telephone call at 10.51am on 10 September 2004. It was a call, which involved Mr Atik, Mr Sharrouf and Mr Joud. It was not a call that discussed the exchange of anything, nor did it relate to the provision of any material. It was, counsel said, a completely innocuous call. Thirdly, Mr Buscombe pointed to the fact that the material seized from Mr Joud was never returned to him. 36 How then, counsel asked, could it be inferred that when Mr Baladjam and Mr Mulahalilovic attempted to obtain certain materials in early November 2005, they were doing so using information that had been supplied by Mr Joud? Counsel argued that it was simply impossible to show a relevant connection between the two events, especially as they occurred about 14 months apart. Resolution of the issues Preliminary argument 37 The oral submissions made by Mr Dalton on 5 and 7 May 2004 threw up a preliminary point for decision. At the time the written submissions were filed, it seemed to be common ground between the parties that certain well-established principles of admissibility would apply to and influence the rulings that I would be required to make in this decision. A particular statement of those principles had appeared in my earlier judgment R v Baladjam & Ors [No 11], unreported, 16 April 2008. The particular passages, especially relevant to this preliminary argument, appear in that decision at paragraphs 24 to 29. I shall set them out again in this decision. "In relation to a charge that a person has conspired with others to commit a criminal offence or offences, established authority points to three propositions relevant to the present arguments. In identifying these matters, I leave to one side for the moment the requirements of the Criminal Code Act 1995 relating to a conspiracy charge. These three matters are:- (a) In many instances the same facts will be relied on by the Crown to establish both the existence of the conspiracy and the participation of the individual conspirators in it. This will not always be so, but it will often be the case. (A general scrutiny of the Crown case in the present matter reveals that this is a case where the Crown will rely on the same matters to prove both the existence of the conspiracy and the participation of the individual conspirators in it. Apart from issues as to when several of the conspirators were alleged to have joined the plot, there is said to be one conspiracy pursuing the same objects over about one and a half years. Each accused, in general terms, is said to have been involved in furthering the objects of the conspiracy in one way or another continuously throughout this time.) (b) The co-conspirators' rule will, as a consequence, apply in general terms to the individual actions to be relied on by the Crown so as to make these actions admissible against the other alleged conspirators. This will be in proof of the participation of the accused in the conspiracy. Quite apart from the co-conspirators' rule, those individual acts may be relied upon to prove the existence of the conspiracy, its scope and nature and its continued, uninterrupted existence throughout the duration of the conspiracy . (emphasis added). (c) The method and timing of the determination of issues relating to whether there is reasonable evidence, apart from the acts or words of other conspirators, that a particular accused was also a participant falls to be determined by the trial Judge at the close of the Crown case or before jury address. The authorities founding these propositions are Ahern v The Queen (1988) 165 CLR 87 at 94-95; 100 and 104. See also R v Chai (1992) 27 NSWLR 153 at 191; R v Masters (1992) 26 NSWLR at 465-6. The relevant passages that underscore these propositions are at pages 94-95, 100 and 104 of Ahern . I will set out the first two. The third appears in one of the decisions I gave yesterday, when I was dealing with Mr Scragg's submission re his client Jamal. At pages 94-95, the Court said: - "That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others. Thus, anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation." The Court then likened the situation and justified the situation of that rule to an analogy of people being partners in crime. The second major point made by the High Court in Ahern's case was that the question of whether there was reasonable independent evidence of the participation of an alleged conspirator as a ground for use against him of evidence of the acts and declarations of others taking place in his absence must be determined, this being a matter for the trial judge. The discussion appears at page 100. Their honours said: "In our view the test adopted in Tripodi is an appropriate one. Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant." 38 During the oral presentation of his argument, Mr Dalton, in the politest of terms, pointed out a suggested qualification to these statements of principle, derived as they were from established authority. In essence, Mr Dalton took issue with a proposition inherent in the statement appearing in para 24 (b) above: "Quite apart from the co-conspirators' rule those individual acts may be relied upon to prove the existence of the conspiracy, its scope and nature; and its continued uninterrupted existence throughout the duration of the conspiracy." 39 This inherent proposition had been taken up by the Crown in its written submissions. It had argued, in relation to the Melbourne material generally, that "the evidence is admissible against all accused to prove the existence and nature of the conspiracy, and some aspects of the evidence are admissible to prove the participation of the accused in the conspiracy". I have earlier set out the Crown submission in full. 40 Mr Dalton's qualification was simply this: Counsel argued that evidence could not be admitted against the accused generally to prove the existence and nature of the conspiracy unless that evidence was itself evidence of acts done in furtherance of the conspiracy, or, as Mr Dalton later put it, pursuant to the conspiracy. Senior counsel argued that this qualification arose from a consideration of the ALRC report (ALRC 26 vol 1 para 646 and para 755) and the terminology of ss 57(2) and 87(i)(c) of the Evidence Act 1995. Counsel argued in addition, that a close examination of established authority demonstrated that where evidence had been allowed in to prove the existence and nature of a conspiracy, it was generally in fact evidence of acts done in furtherance of the conspiracy. After the conclusion of the hearing on 7 May 2008, Mr Scragg sent me some further submissions, which contained references to recent authority, bearing, it was said, on the present preliminary point. As these submissions were sent in aid of Mr Dalton's argument, I shall respond to them in this decision. 41 Mr Dalton sought to use the qualification he urged to exclude the evidence of the Sharrouf conversations with Benbrika. He argued that the evidence could only be relevant as to Sharrouf's state of mind. It was not material that was admissible, subject to the application of the co-conspirators' rule, against the other co-conspirators. Mr Buscombe said the conversations would not be admissible against the other men, even if Benbrika had said something about their state of mind during the conversations. It could only reflect on his state of mind. It could not reflect on theirs. 42 Broadly, Mr Dalton submitted that none of these matters could be admitted to show the existence and scope of the conspiracy unless the acts and words (and the fact of association itself) were in furtherance of the conspiracy. Because Benbrika (and the Melbourne men) were not alleged to be co-conspirators, it was impossible to say that either the association with them or the "acts" represented by the conversations could be in furtherance of the conspiracy. Resolution of the preliminary issue 43 It will be necessary in due course to look carefully at the various conversations in Exhibits "A" and "B" to determine whether they are relevant and admissible. It will be also necessary to consider whether any of those conversations or remarks should be excluded pursuant to s 137. For the moment, I am merely examining Mr Dalton's suggested qualification to the general statement of principle. Is his argument correct? Is the evidence of one co-accused doing an act (including verbal acts) relevant and admissible in proof of the existence and scope of an alleged conspiracy, in circumstances where the "act" is not one done in furtherance of the conspiracy? Mr Dalton's proposition is that, for it to be relevant, evidence as to the existence and scope of the conspiracy must be evidence of acts done in furtherance of the conspiracy, or pursuant to the conspiracy. I have come to the conclusion that Mr Dalton's qualification cannot be accepted as a correct statement of the law. In my opinion, it is contrary to authority and to established principle. Secondly, it is inconsistent with the provisions of the Evidence Act, which, in general terms, reinforce the existing common law on this topic. 44 I shall turn first to established authority. Before doing so, it will be convenient to refer to the second edition of "The Law of Criminal Conspiracy" by Dr Peter Gillies 1990 chapter 13 at page 176: "Conspiracy counts typically present difficulties of proof. Technically, of course, a conspiracy is a mere agreement for an unlawful purpose. The only way it could be proven by direct evidence, would be by the adducing of direct evidence of the acts by which the alleged conspirators formed their agreement. Typically, this will be impossible. Indeed, unless a conspiracy is transacted, in whole or in part, it is unlikely even to come to the attention of the police and the prosecuting authorities. Most conspiracies, which come to be indicted, have been transacted. Just as the police come to know of the existence of a conspiracy through the commission of its overt acts, the prosecution will usually seek to determine the specific objects of the conspiracy and the identity of its participants and victims, and to prove its existence in these terms, very largely by reference to and proof of these overt acts. In practice, that is, the prosecution will invite the jury to infer the existence of the conspiracy, its terms and its participants, by reference to the overt acts done in its commission, subject to the prevailing standard of proof in criminal trials. This approach is entirely logical. If A and B jointly commit a series of cognate crimes, it may readily be inferred that they agreed upon the commission of these offences. In the words of the Canadian Supreme Court in Paradis v R (1934) 61 CCC 184: 'No doubt the agreement...is the gist of the offence (i.e. conspiracy), but only in very rare cases will it be possible to prove it by direct evidence. Ordinarily the evidence must proceed by steps. The actual agreement must be gathered from "several isolated doings" having possibly little or no value taken by themselves, but the bearing of which one upon the other must be interpreted; and the cumulative effect, properly estimated in the light of all the surrounding circumstances, may raise a presumption of concerted purpose entitling the jury to find the existence of the unlawful agreement.' The High Court commented in similar terms in its recent decision in Ahern v R (1988) 165 CLR at 92." 45 Dr Gillies points out (at page 177) that Ahern was, at the time his book was published, the leading Australian case dealing with the proof of conspiracy. (it may properly be still so regarded at the present time). 46 At page 92 of Ahern, the Court said: "An appropriate starting point from which to consider the use which might be made of the acts and declarations of one co-conspirator against another is the rule of thumb referred to in Tripodi v The Queen (1961) 104 CLR 1 and 7. There it was said to be an 'empirical' but practical and convenient test; that acts and declarations done or made outside the presence of an accused are not admissible against him. Practical and convenient though that test might be, it can be no more than a rule of thumb, because it is clear that it has a limited application. It represents an attempt to state, in practical terms, the effect of the hearsay rule although, of course, acts (other than certain acts of communication) cannot of themselves constitute hearsay and, strictly speaking, lie outside the rule. However, acts may contain an implied assertion on the part of the actor, which makes it appropriate to treat evidence of those acts for some purposes as the equivalent of hearsay. A conspirator may, in the absence of another person alleged to be a co-conspirator, say or do something carrying with it the implication that the other person is involved. The statement or the act may be admissible in evidence to prove the fact of a conspiracy and, by way of admission, the participation of the maker of the statement or the actor in that conspiracy. But evidence of neither the statement nor the act should, except in the circumstances which we shall elaborate presently, be admitted against the other person to prove his participation, because it would for this purpose be hearsay or the equivalent of hearsay." 47 Mr Dalton placed particular reliance upon these passages. The Court however, continued (page 93): "In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise, which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others, provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule... Thus it was said in Tripodi (at page 6) that proof of the crime of 'conspiracy' may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment." 48 And later, at page 94, the Court said: "However, it is not in all cases that evidence of the separate acts of the alleged conspirators will prove both the fact of combination and their participation. Of course, if the evidence fails to prove a combination at all, then that is an end of the matter. But if it proves a combination, although not the participation of an individual alleged to be a conspirator, then the question arises whether there are circumstances in which evidence of the acts and declarations of other participants, outside the presence of the individual, may be led against him, not as separate facts from which, when combined with other facts an inference of combination may be drawn, but as evidence of his own participation. Evidence of the acts or declarations of others led for this purpose will be led to prove the truth of the assertion or implied assertion contained in those acts or declarations. It would be excluded as hearsay or its equivalent, were it not admissible upon some other basis. That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose, is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others." 49 The Court then went on to consider the degree or standard of proof of the evidence from another source which is required before the admission of the evidence against the absent conspirator; and whether it was for the trial Judge or the jury to decide whether proof to a required standard existed. 50 It will be seen, however, from the analysis conducted by the High Court, that the Court envisaged that evidence relevant to the existence and scope of the conspiracy might be a combination of circumstantial evidence not necessarily represented by acts done in furtherance of the conspiracy. It is true that the example given by the Court (persons engaged in various aspects of a bank robbery) were acts and declarations of participation in the venture. But in my opinion, the Court also made it clear that "acts or utterance" from which the fact of combination might be inferred, were not restricted to acts done in furtherance of the conspiracy. 51 This aspect of the relevant principles was examined extensively by the New South Wales Court of Criminal Appeal in two decisions given in 1992. The first of these was R v Masters, Richards and Wunderlich. Two of the three accused were alleged by the Crown to have been recruited to join an existing conspiracy, of which the third accused was already a member. Evidence was led, over objection, of three conversations between the third accused and another of the existing members of the conspiracy. Two of the conversations took place before the other two accused were recruited. The third conversation took place after recruitment. At page 460G the Court said: "In conspiracy cases, the Crown must establish both the existence of the conspiracy and the participation of each particular accused in that conspiracy; there is a clear distinction to be made in relation to the admissibility of evidence to establish each of those two issues: Ahern v the Queen (1988) 165 CLR 87 at 93. That distinction becomes of special importance where the conspiracy is alleged to have been between the accused and persons not standing trial with them. In order to establish the existence of the conspiracy, evidence is admissible of acts done or statements made by persons other than the particular accused even if he were not present - not (so far as the statements are concerned) to prove the truth of what was said, but in order to establish from the fact that the acts were done or the statements were made, the inference that the agreement which constituted the conspiracy charged had been entered into...that evidence is direct evidence, not hearsay ( Ahern v The Queen at 93); and it is admissible for that purpose even if the acts were done or the statements were made before the particular accused joined or became a participant in that conspiracy, for it does not depend in any way upon any acknowledgment or acceptance of the truth by the accused of the statements so made. In order to establish that the particular accused participated in that conspiracy, there must first be reasonable evidence of that participation - that is, evidence independent of those acts and statements by other persons - which is admissible in the ordinary way against that accused: Ahern v The Queen (at 100). Once the judge has decided that there is such reasonable evidence in the case against that accused...the acts and statements by other persons in the conspiracy will become admissible against that accused, not only as establishing the existence of the conspiracy, but also, if they were done or made in furtherance of the conspiracy, as establishing his participation in it: Tripodi v The Queen (1961) 104 CLR 1 at 67; Ahern v The Queen at 100, 103; R v Davidovic (1990) 51 A Crim R 197 at 201-202. It has not always been made clear in the cases just what constitutes an act done or a statement made 'In furtherance of the conspiracy'. In Tripodi v The Queen (at 7), the distinction was drawn between such actions and statements and something said which is no more than a narrative statement or account of some event, which has already taken place. Statements made in furtherance of the conspiracy, it was said, will usually be 'Directions, instructions or arrangements or...utterances accompanying acts'. The expression itself - 'made in furtherance of the conspiracy' - suggests to us that a distinction should also be drawn between those acts or statements which form the conspiracy itself (that is, the acts or statements by which the agreement was made) and those which are done or made subsequently in furtherance of, or in carrying out, that conspiracy once the agreement had been made. The reference in Tripodi to 'arrangements' was (we believe) intended to be arrangements made in order to carry out the conspiracy, not to the formation of the conspiracy itself. Such a distinction is not one, which will always be easy to make. It is certainly rare that there is direct evidence of the Acts or statements which themselves form the conspiracy." 52 In relation to statements made in furtherance of the conspiracy before the particular accused participated in the conspiracy, the Court held they would not be admissible against the accused who had subsequently joined the conspiracy as evidence of the truth of those statements, including as to his subsequent participation in that conspiracy. Such statements, the Court said, would become admissible against C as evidence from which the existence of the conspiracy may be inferred. For that reason, it would be necessary for the trial Judge in such a case to instruct the jury carefully upon the limited purpose for which the evidence was admissible (463A to C). The Court continued: "Applying that view of the law to the facts of this case, it is clear that the first and second of the three conversations in issue (which took place before there is any suggestion in the evidence that the appellants had participated in the rip-off conspiracy) were not admissible against them as having been made by co-conspirators in the furtherance of the conspiracy, as the Judge told the jury in the directions to which we have already referred. But that circumstance did not make those two conversations inadmissible. We are satisfied that each of them was admissible in order to establish the existence of the rip-off conspiracy itself. No question of hearsay arose. The conversations were original evidence of the existence of that conspiracy. In the first conversation, Richards agreed with Morrison to take part in the conspiracy and the subject matter of that conspiracy was identified. In the second conversation, it was agreed between the existing conspirators that Richards would recruit others to assist in that conspiracy. That conversation enlarged the scope of the conspiracy. No question therefore arose as to the application of the 'co-conspirator rule' in relation to these two conversations. Their admissibility did not depend in any way upon whether they took place in furtherance of the conspiracy. They became admissible against Masters and Wunderlich as to the existence of the conspiracy which they had joined, if there were reasonable evidence of their subsequent participation in it... In our view, the remainder of the summing-up made it clear that those two conversations went only to establish the existence of the conspiracy which these two appellants were alleged to have subsequently joined." 53 The Court went on to consider the third conversation. This was found to be admissible because it constituted statements by the co-conspirators related to the carrying out or the furtherance of the conspiracy already established by the first and second conversations. It thus was enlivened by the co-conspirators' rule. 54 Now, it is true that in R v Masters, the first two conversations went directly to prove the existence of the alleged conspiracy. They were not only relevant to that issue, but proved the existence of the conspiracy. But circumstantial evidence relevant to the existence of a conspiracy may not be so direct. It may include many circumstantial facts, none of which in themselves will prove the existence of the conspiracy but, which, when examined with the evidence as a whole, will reveal the existence of the agreement relied upon by the Crown. This multitude of circumstantial facts may include acts done in furtherance of the conspiracy and facts which do not constitute acts done in furtherance of the conspiracy. Many of the facts, when examined in totality, will point not only to the existence of a conspiracy, but to the nature of that conspiracy. Again, some of those acts may be acts done in furtherance of the conspiracy. Others will not be of that character. Further, circumstantial evidence of this kind may contain hearsay statements or involve implied hearsay assertions. That will not prevent its admission into evidence in proof of the existence and scope of the agreement, as the authorities make clear. But, again, much of the circumstantial evidence may not be hearsay at all. It may make no reference to the other conspirators. It will be admissible against all the conspirators, however, in the sense that it may be considered, along with the whole of the evidence, not to prove the participation of the other conspirators, but to prove that a conspiracy existed and to identify the subject matter. 55 In R v Chai (1992) 27 NSWLR 153, the principal judgment was given by Badgery-Parker J, with whom Hunt CJ at CL and Allen J agreed) said at page 187: - "It appears to me abundantly clear that the Judge, having reached a conclusion that there is reasonable independent evidence of the accused's participation, and having told the jury that the issue is whether the Crown has proved beyond reasonable doubt that the accused was a participant in the conspiracy charged, should simply direct the jury's attention to the evidence available to them in considering that matter, which evidence would consist, upon the hypothesis now made, of the evidence admitted directly as evidence of the acts and declarations of the accused himself (which may itself be direct evidence or circumstantial evidence) together with such part of the evidence of the acts and declarations of co-conspirators as expressly or impliedly assert the participation of the accused in the conspiracy. He would also, of course, draw to the jury's attention as evidence going to show the existence of the conspiracy as distinct from the accused's participation therein, the evidence of the acts and declarations of the co-conspirators which, as explained in Ahern, permit an inference to be drawn of the existence of a conspiracy with no infringement of the hearsay rule . If, on the other hand, the trial Judge came to the conclusion that there was no reasonable independent evidence of the accused's participation, he would direct the jury that while they might refer to the evidence of the acts and declarations of the co-conspirators in the absence of the accused as forming part of a network of facts from which in accordance with ordinary principles of circumstantial evidence they might draw an inference of the existence of a conspiracy , they must put out of their minds such part of the evidence as might assert or impliedly assert the accused's participation when they came to consider whether the Crown had proved beyond reasonable doubt the accused's participation. It may of course well be the case that if, in the view of the trial Judge, that evidence was not available because there was not otherwise reasonable independent evidence of the accused's participation, he would in any event direct the acquittal of the accused." (underlining added). 56 And later, at 193 (B-D), dealing with an associated ground of appeal, his Honour said: "This court has discussed the relevant principles in R v Masters . A distinction is to be drawn between acts or words of co-conspirators, [] the doing or uttering of which provide circumstantial evidence of the existence of a conspiracy and of its nature; and acts or words of co-conspirators which expressly or impliedly assert the participation of the accused in the conspiracy. As to the former, they are admissible against an accused person whether they took place before or after a time as to which there is evidence available to show his participation. As to the latter, they would be excluded by reason of the hearsay rule, unless rendered admissible by virtue of the co-conspirators' rule." 57 The associated ground of appeal was that the trial judge had been in error in leaving to the jury conversations and acts of the co-conspirators which occurred prior to the appellant being appointed as a local buyer, and hence as a member of the conspiracy. 58 The court held that all the conversations were admissible in evidence as circumstantial evidence that a conspiracy to import heroin into Australia existed, and that the parties to it were certain Hong Kong residents. The conversations did not suggest that the appellant had by that time become a member of the conspiracy. Nevertheless, the court held all conversations to be admissible against the appellant as circumstantial evidence and without reliance on the co-conspirators' rule. 59 Although this case was dealing with a wide variety of issues, and essentially turned upon an examination of the directions which the trial Judge had given, the statements of principle are, in my view, completely consistent with the decision in R v Masters and consistent with the decision of the High Court in Ahern. Each of the decisions is inconsistent with the proposition argued by Mr Dalton that evidence going to show the existence of a conspiracy must be restricted to acts done in furtherance of the conspiracy before it can be admitted against the others. 60 The next authority which needs to be examined is the decision of the Court of Criminal Appeal in R v Louden (1995) 37 NSWLR at 683. The appellant and another man had been tried on a charge that they conspired with two others (Dorain and Francisco) to manufacture a commercial quantity of methylamphetamine. Louden's defence at trial was that he was only ever involved in the manufacture of a drug that was legal in New South Wales, and that he had never been involved in the manufacture of the prohibited drug. 61 The trial judge admitted certain tape-recorded conversations between Dorain and Francisco. They had been talking at a farmhouse shortly before their arrests. The conversations were relied on by the Crown and were admitted, notwithstanding that the appellant and the second defendant were not present at the time of the conversations. The Crown relied upon the conversations to confirm that the intention of the conspirators was to manufacture methylamphetamine. The point at issue in the Court of Criminal Appeal was whether the trial judge had erred in admitting the taped conversations; and whether he had erred in relation to his directions concerning those conversations. 62 Allen J (with whom Newman and Simpson JJ agreed) endorsed the statements of principle in both R v Masters and R v Chai. Those principles were stated to be entirely in accord with the High Court's decision in R v Ahern. In relation to the admissibility of evidence relevant to the existence and scope of a conspiracy, Allen J said at 691 line D: "Its admissibility for that purpose is quite separate from its admissibility for the purpose of being part of the proof of the participation of the accused in the conspiracy. For the purpose of establishing that the conspiracy did exist and what it was, as distinct from proving that the accused participated in that conspiracy, it is irrelevant whether the acts or declarations were in furtherance of the conspiracy ." (underlining added). 63 Allen J's statement of this proposition makes it clear that his Honour was enunciating a general proposition applicable to the law of criminal conspiracy. Indeed, his Honour's detailed analysis of the conversations in the tape recordings shows that he expressly maintained this distinction throughout his examination. 64 In the ultimate, the court held that all the conversations were relevant as circumstantial evidence to show the existence and scope of the conspiracy; and that a number of them were, as well, evidence of acts done in furtherance of the conspiracy. 65 Mr Dalton argued that Louden's case could be distinguished from the argument that has arisen in the present matter. Mr Dalton reminded me that Louden had been put on trial twice for the same charge. In the first trial all the alleged conspirators were on trial, although in the second trial Mr Louden was tried jointly with one Allan Price. Mr Dalton suggested that, in this second trial, there could have been no challenge to the admissibility of the taped conversations as they were plainly in furtherance of, or in pursuance of the conspiracy. It appears clear from a reading of R v Louden that Mr Greenwood QC, who appeared for Louden, did object to the admission of the tapes. Senior counsel had argued that the tapes should not be admitted into evidence because they were not conversations in furtherance of the conspiracy (page 689 line C.) He also argued that they were not admissible on any other basis. Accordingly, I do not consider that the first point of distinction is justified. 66 The second point of distinction was that the trial predated the Evidence Act 1995. Mr Dalton argued that the Evidence Act altered the legal landscape referred to in Louden and the earlier authorities. In my opinion, it did not and I shall shortly discuss the provisions of the Evidence Act. 67 For the moment, it may be said that the Court of Criminal Appeal in Louden had to examine the question as to whether the conversations were admissible against the appellant. This was in the context that, apart from two references, the conversations made no mention of the appellant at all. Even though Allen J expressed the view that most of the conversations constituted evidence of matters in furtherance of the conspiracy, he made it clear that this was of no moment to his decision. It was held that all the conversations were admissible against the appellant as evidence of a circumstantial kind relevant to the existence and scope of the alleged conspiracy. This was so even though the conversations (with two exceptions) did not point to the participation of the appellant in the conspiracy. 68 I consider that R v Louden is direct authority, binding on me, and that it requires me to reject the qualification to established principles inherent in the proposition advanced by Mr Dalton. 69 I understand that an application for leave to appeal to the High Court was filed in Louden, but it is my understanding that this was unsuccessful. Louden was applied in the West Australian Court of Appeal in Caratti v R (2000) 157 FLR 241. 70 Mr Dalton would, no doubt, say that much of the evidence under scrutiny in both Chia and Louden (as it had been in Masters) was in fact evidence showing persons acting in furtherance of the conspiracy. There is no warrant, however, for suggesting that evidence of the existence and scope of the conspiracy is to be confined to acts in furtherance. The authorities themselves do not say that this is so. Quite to the contrary. Of course, in most conspiracies, the evidence obtained will usually be evidence of acts done in furtherance of conspiracy. That is, it might be said, the nature of the beast. But with modern surveillance techniques, the evidence may capture the conspirators in the very act of their agreement. That would not be, in ordinary parlance, an act done in furtherance of the conspiracy. Sophisticated interception methods might show the conspirators discussing the agreement they had made a short time after its interception. A narrative of past events would not be an act in furtherance of the conspiracy. One conspirator might be overhead telling third parties about the agreement that had been struck. He might even name the other parties to the agreement. These conversations would not necessarily be acts in furtherance of the conspiracy (that might depend upon the relationship between the conspirator and the third party and other matters). But they would be admissible, as would the other examples I have given, in going to the existence and scope of the conspiracy. The last illustration, where the single conspirator named the others, would be admissible directly against the speaker. But it would also be admissible, for a non-hearsay purpose, against the others who were not present. It would be evidence which, when taken together with other evidence, would tend to show the existence and scope of the conspiracy and the identity of the participants in the conspiracy. Of course, if there were no subsequence evidence of participation by the others, the evidence would cease to have relevance against them and the jury would be so instructed. Provisions of the Evidence Act 1995 71 Mr Dalton's submission is that, although the Evidence Act does not change the common law position regarding conspirators generally, it does so in relation to the qualification he argued. This arises from a consideration of the terminology of s 57(2) and s 87(c). 72 The starting point in Mr Dalton's argument is a statement of principle published by the ALRC (ALRC 26, volume 1, para 646) concerning the proposal for s 57(2). The statement is as follows: "Evidence of statements made by an alleged conspirator A intended as evidence of acts done pursuant to the alleged conspiracy will continue to be admissible against A and against alleged conspirator B. The evidence is not intended for a hearsay purpose and is not caught by the hearsay proposal. Such evidence raises an issue of conditional or provisional relevance - the relevance of the act of A to the case against B will depend upon a finding that there was a common purpose. This issue was covered by the proposal on conditional relevance. In addition, however, the proposal provides that, as at present, the evidence of A's acts may be considered with evidence of B's acts and collateral circumstances to prove the common design." 73 It will be convenient, for the purposes of this decision, to set out the whole of s 57 of the Evidence Act 1995. It is in the following terms: " 57 Provisional relevance (1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if it is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceedings that will make it reasonably open to make that finding. (2) Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of a common purpose, (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed." 74 It will be recalled that Mr Dalton's "qualification" was that evidence could not be admitted against the accused generally to prove the existence and nature of the conspiracy, unless that evidence itself was evidence of acts done in furtherance of the conspiracy, or pursuant to the conspiracy. 75 With all respect, I am unable to see that there is anything in either the terminology of s 57(1) or (2) or, for that matter, in the Law Reform Commission's statement that supports the suggested interpretation. 76 It needs to be borne in mind that section 57 is dealing with the issue of relevance. Part 3.1 of the Evidence Act is concerned with relevance and s 57 falls within the ambit of that topic. Section 55 of the Act defines evidence that is relevant in a proceeding. Section 56 provides that only relevant evidence is admissible. Section 57 caters for the admission of evidence if it is provisionally relevant. Section 58 deals with the ability of the court to draw a reasonable inference from a document or thing in order to determine its relevance. By way of contrast, parts 3.2, 3.3 and 3.4 deal with hearsay, opinions and admissions. These parts of the Evidence Act assume relevance, but indicate where relevant evidence may not be admitted and where it may be admitted. With exceptions, hearsay evidence may not be admitted. For example, admissions, which would infringe the hearsay rule, are admissible in certain circumstances. There is no need for me to examine the other aspects of part 3 dealing with matters such as tendency, credibility, character and other matters. Again, by way of further contrast, part 3.11 is concerned with discretions to exclude evidence that is otherwise relevant and admissible. 77 In a conspiracy case, as with litigation generally, s 57(1) is an important provision. It enables the court to admit evidence as provisionally relevant in circumstances where its relevance depends on the court making another finding, if it is reasonably open to make that finding, or subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding. Section 57(2) does not limit the ambit of sub-s (1). Indeed, it extends it if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had a common purpose; or were acting in furtherance of a common purpose. In the first situation, the court may use the evidence itself in determining whether the common purpose existed. If admitted provisionally, it will cease to be relevant if admitted, if there is not other evidence to show in the second situation, the existence of a common purpose, the purpose being of the kind and character that is alleged in the charge; or it may cease to be relevant if there is not other evidence to show the acts were done in furtherance of such a common purpose. It will cease to be relevant as against a particular conspirator if there is no evidence of his participation in or membership of the conspiracy. Of course, in the ultimate, it may demonstrate both the existence of the common purpose and that it is an act done in furtherance of such a common purpose. 78 Strictly speaking, the section is not itself concerned with the issue of admissibility or exclusion. Rather, it is concerned to identify the basis on which evidence may be regarded as provisionally relevant and, in relation to s 57(2), the way it may be used in a common purpose situation. In the case of a conspiracy charge, it allows the court to scrutinise the provisionally relevant evidence itself (no doubt along with other evidence) in order to determine whether a common purpose of the kind alleged was in existence. 79 Viewed in this way, it will be seen that s 57 does not change the existing law. Nor does it qualify or modify the Ahern principles as enunciated in the three decisions of the New South Wales Court of Criminal Appeal to which I have made reference. 80 The ALRC paragraph, upon which Mr Dalton placed reliance, referred to "evidence of statements made by alleged conspirator A intended as acts done pursuant to the alleged conspiracy". These statements, according to the Report, would continue to be admissible against A and against conspirator B, but not for a hearsay purpose. The Report did not suggest, however, that evidence generally relevant to the existence and scope of a conspiracy would be incapable of being regarded as provisionally relevant. It did not suggest that circumstantial evidence in proof of the existence and scope of a conspiracy would not be relevant or provisionally relevant, It certainly made no suggestion that only acts done in furtherance of the conspiracy was to be regarded as relevant to the existence and scope of the conspiracy. That would have been a startling and radical proposal. Rather, the passage suggests that the law of evidence in relation to this aspect of the law of conspiracy was to remain unaltered. 81 Mr Dalton also made reference to s 87(2) of the Evidence Act. This appears in that section of the Act dealing with admissions. Section 81 provides that the hearsay rule and the opinion rule do not apply to evidence of an admission. "Admission" is defined in the dictionary: '"Admission' means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding"; and (b) adverse to the person's interest in the outcome of the proceeding". 82 Previous representation is defined to mean a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced. It includes both an express or implied representation (whether oral or in writing), and a representation that is to be inferred from conduct." 83 Section 87 deals with "admissions made with authority". Thus it is concerned with representations made, for example, by an employee of the party to proceedings, or by a person who had authority otherwise to act for the party where the representation related to a matter within the scope of the person's employment or authority (s 87(1)(b)). For present purposes, the relevant section is s 87(1)(c). This is in the following terms: " 87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: (c) The representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party." 84 The terms of s 87(1)(c) would appear to indicate that it is, in general terms, a direct application of the co-conspirators' rule. The expression "if it is reasonably open to find" may not be precisely the same as the concept of the presence of "reasonable evidence of participation", but the concept is generally the same. 85 That this is so is not contradicted by the ALRC Report 26 Volume 1 para 755. In any event, in R v MacRaild (unreported) NSWCCA, Sully, Dunford, Simpson JJ, 18 December 1997, held that s 87(1)(c) reflects the existing common law (see also, in the context of a civil case, dealing with the phrase "reasonably open", Jackson v TCN Channel 9 Pty Limited (2002) NSWSC 1229 (at 40, per Adams J). 86 Mr Dalton argued that the use of the expression "an act done" by a person in s 57(1) was to be contrasted with the expression "a previous representation" appearing in s 87. I am unable to see that this distinction is of any real moment for the purposes of the present discussion. Section 57 appears in a part of the Evidence Act dealing with relevance of acts. Moreover, "an act done" clearly would extend to "verbal acts" as described by the High Court in Ahern. The expression "previous representation" appears in that part of the Act dealing with "admissions". In any event, representation includes one that is to be inferred from conduct. I do not consider that the distinction in the expressions used supports the "qualification" argued for by Mr Dalton. Other Authorities 87 The two authorities sent to me by Mr Scragg were Australian Competition and Consumer Commission v Leahy Petroleum Pty Limited and Ors (2007) 160 FCR 321; and R v Hayter (2005) 1 WLR 605; (2005) UKHL 6. 88 The first was a decision of Gray J in the Federal Court of Australia. The case concerned allegations of retail price fixing in the Geelong retail petrol market. The plaintiff alleged that a series of arrangements or understandings existed between competitors in that market, each containing a provision, having the purpose, or likely to have the effect, of fixing prices. The conduct alleged was said to contravene certain sections of the Trade Practices Act. As might be expected, the factual content of the case was very complicated. One question which arose, however, was the admissibility against one respondent of an admission made by another respondent. In relation to this issue, Gray J referred to s 57(2) and s 87(1)(c) of the Evidence Act 1995 (Cth). Grey J made two statements. The first related to s 57(2) in these terms at 339 (52): "The other issue that may arise in this case, with respect to which it is necessary to look at some authorities, is the question of the admissibility against one respondent of an admission made by another respondent. For instance, if A gives evidence of a conversation between A and B, and A's evidence is that, in the course of the conversation, B said something probative of the existence of an arrangement or understanding between B and C, the evidence is plainly admissible against B as an admission, pursuant to the exception in section 81(1) of the Evidence Act to the hearsay rule in section 59(1). The question is whether this admission is also admissible against C. Section 57(2) of the Evidence Act does not answer this question itself. It provides in its own terms, and it deals only with the relevance of evidence. Indeed, it is one of the provisions in part 3.1 of the Evidence Act , all of which deal with relevance. There can be no doubt that, if the statement made by B in the conversation with A is indicative of the existence of an arrangement or understanding between B and C, then, consistently with section 57(2), the court may use the content of that statement to determine whether it is evidence that the requisite common purpose existed, and therefore that the evidence is relevant to that question. Given its relevance, the evidence is still not admissible against C unless section 87(1)(c) of the Evidence Act applies. For that to apply, it must be reasonably open to the court to find that the statement was made in furtherance of a common purpose that B and C had. It is clear that section 87(1)(c) can only operate if it is reasonably open from evidence other than the statement itself that the statement is made in furtherance of a common purpose." 89 I would agree with this analysis with one exception. It seems to me that, consistently with decided authority, the evidence of the statement made by B referred to above may be examined alongside other evidence in the proceedings, including a body of circumstantial evidence, to determine whether the common purpose existed, its participants, and its scope. In that sense, the statement is admissible against C, although it cannot be used to prove the participation of C in the agreement unless the process in s 87(1)(c) is followed and satisfied. 90 As to this process, Gray J discussed it at 340 (54). His Honour said: "Some confirmation of this proposition is available from the authorities. On two occasions, the New South Wales Court of Criminal Appeal has said that section 87(1)(c) of the Evidence Act 1995 (NSW) reproduces the pre-existing common law (see R v MacRaild and R v Watt ). The pre-existing common law is found in Tripodi v The Queen and Ahern v The Queen . In both of these cases, the High Court of Australia made it clear that the statement by B could only be admissible against C if there were "reasonable evidence" establishing the existence of the common purpose, apart from the statement itself. I do not necessarily accept, as a New South Wales Court of Criminal Appeal appears to have done, that the 'reasonable evidence' test is identical to the formulation 'reasonably open to find' referred by the legislature. For present purposes, however, MacRaild and Watt stand as authority for the proposition that, so far as they are consistent with the terms of section 87(1)(c) of the Evidence Act , Tripodi and Ahern are to be taken as providing authority on the proper construction of that provision. It follows that section 87(1)(c) must be applied on the basis that the admissibility of B's statement as against C can only be determined by reference to evidence other than the statement itself." 91 Again, I would demur from Gray J's analysis in one respect. It seems clear to me from the authorities to which I have made reference that B's statement may be admissible against C in proof of the existence and scope of the conspiracy in the manner I have suggested it may be used. 92 Interestingly enough, Gray J not only dismissed the case against the defendants who argued that no arrangements of the kind pleaded had existed, his Honour also dismissed the proceedings against the respondents who made admissions and consented to the case being decided against them on the basis that such arrangements existed. Grey J acted on the basis of Heydon JA's formulation of the test in Damberg (2001) 52 NSWLR 492, namely that the court could (and perhaps should) decline to act on admissions when there was "reason to doubt their correctness", or "reason to question the correctness of the facts admitted or agreed". 93 The second case of R v Hayter was well removed from the present discussion. The House of Lords were considering an appeal by Hayter following the dismissal of his appeal by the Court of Appeal against conviction for murder. The principal point at issue was whether the confession of a defendant was inadmissible in a joint criminal case against a co-defendant. Three persons had been charged with murder. All three were indicted as principals. The judge invited the jury to consider in logical phases the cases against, first, the alleged killer; then, secondly, against the woman who procured the killing, and finally against the middle man. The judge directed the jury that, only if they found both the actual gunman and the woman who arranged the killing guilty of murder, would it be open to them, taking into account those findings of guilt, together with other evidence against the middle man, to convict the middle man Hayter. The jury convicted all three defendants of murder. 94 The majority of the House of Lords confirmed that the judge had correctly directed the jury that the confession of the killer was irrelevant and inadmissible in the case against the other defendants. It also found that in subsequent directions to the jury as to how the jury might sequentially reason from the guilt of the killer and the woman who procured the murder to the guilt of the middle man, did not involve error. 95 I have read carefully the passages Mr Scragg referred me to during the oral against, especially the reference to Keane's Modern Law of Evidence. I do not find, however, that there is anything in the decision that persuades me to take a different view of the settled principles established by Australian authority. 96 Finally, there were a number of authorities referred to by Messrs Waterstreet and Lange in one of their written submissions in reply. The propositions they sough to draw might best be exemplified by the remarks in R v Moore (1988) 25 A Crim R 302, 310 per McPherson J: - "Evidence of statements or declarations by one conspirator may on some occasions be admissible against another in the character of original evidence of conspiracy, provided however that the relevant statement or declaration is made in furtherance of the purpose of the conspiracy , and is not merely a narrative account of a past event: see Finn and Niblock [1985] 1 Qd R 212 at 214-215, and authorities cited there." 97 These remarks, it might be respectfully observed, are quite at variance with the observations of the High Court in Ahern's case. They fail to reflect the distinction the High Court (and subsequently the New South Court of Criminal Appeal) thought of such critical importance. In any event, pre Ahern judgments are, in my view, of little assistance. Indeed, in the light of the settled principles established in Ahern, such remarks are apt to positively mislead. Application of these principles to the present trial 98 I propose now to move from a theoretical consideration of the relevant principles, applicable generally to a conspiracy trial, to examine the way in which they should be applied to the controversy that has arisen in the present pre-trial application. Such an approach may best be understood against the background of an example. Let me take the example of the "maximum damage" statements made by Benbrika on 23 February 2005. It will be recalled that Hasan and Sharrouf travelled to Melbourne on that day and met with Benbrika at his home. There were discussions about the CD entitled "A Guide for the Mujahideen" and discussions about another book entitled "Martyrdom Operations". While at Benbrika's home, there was a discussion among those present about purchasing or ordering laboratory equipment from Haines. This is relied on by the Crown as an overt act referable to the alleged conspiracy. In that regard, the discussion correlated with a handwritten list of an order which was ultimately placed with Haines on 2 June 2005. The order was placed by way of a FAX sent to Haines from a pharmacy at Hoppers Crossing, Victoria. A handwritten list of these items, with connections to both Hasan and Joud, was found at Joud's premises during the execution of a search warrant on 22 June 2005. There was also a connection between the phone used in a follow up call and Hasan. A receipt for this telephone was located at Hasan's premises on 27 June 2005 during the execution of a search warrant. The Crown alleged that the telephone service was later shown to be used by Hasan in making enquiries which was said to be in furtherance of the conspiracy. Finally, the address given for the telephone service, when it was initiated, was at Hopper Crossing, being an address at the same street and suburb as Joud's premises. 99 I will, for the purposes of this analysis, assume that the Crown case is capable of showing, in a general way, that the accused, or some of them, were receiving advice, spiritual and otherwise, from Benbrika. I will also assume that the evidence is capable, again in a general sense, of suggesting that the Melbourne group were supplying at least some of the Sydney accused with extremist material or material expressing shared Islam views. For the moment, I will also assume that this includes material or information of the kind found at Joud's premises. 100 I return now to the "maximum damage" conversation. There is no need to repeat it. It is set out in paragraph (e) at the foot of page 4 of this judgment. I shall refer to it as "the conversation". 101 Mr Dalton has argued that the conversation, if it is admissible at all, is only admissible against Sharrouf to show his state of mind. Mr Dalton argued, firstly, that not every "extremist" discussion between Benbrika and Sharrouf would be relevant to show a state of mind or an intention linked to terrorist activities. If the discussion, for example, amounted to no more than a group of men expressing political views about the presence of the Americans in Iraq or Iran, Mr Dalton argued that it would not be relevant at all. 102 Secondly, assuming that the conversation is relevant as showing Sharrouf's state of mind, Mr Dalton argued that the particular conversation would not be relevant and admissible against the other conspirators. It would not be admissible against, for example, Mr Elomar. This would be so unless the co-conspirators rule had application. Mr Dalton argued that it could not apply for three reasons. First, Benbrika was not a co-conspirator. Secondly, the conversation itself could not be described as an act in furtherance of the conspiracy. Thirdly, Mr Sharrouf's state of mind could not be used as evidence of an "admission" by the other men of their state of mind. 103 Finally, Mr Dalton argued that it could not be admissible against the other conspirators to show the nature and scope of the conspiracy because it was not an act done in furtherance, or in pursuance of, the conspiracy. This was the "qualification", argued by Mr Dalton. In his final written submissions, counsel argued that the evidence of the conversation with Benbrika was not a conversation "in relation to Sharrouf's advancement of the crime" and therefore, it could not be evidence relevant to the existence and scope of the conspiracy. It could not be evidence of the state of mind of the other alleged co-conspirators because, to use it in that way, would be to use it a hearsay manner and that would be prohibited. 104 I am unable to agree with Mr Dalton's arguments for a number of reasons. 105 In the first place, while the conversation may tell us something about Benbrika, it is not, in terms of the Evidence Act, an admission because Benbrika is not a defendant in the trial. Secondly, it may be, as Mr Dalton has argued, that the conversation is relevant to Sharrouf's state of mind. For that matter, it may also be relevant to Hasan's state of mind. Arguably, Hasan was present in the room during this part of the conversation. On the other hand, there is no indication from the conversation itself to indicate that either Sharrouf or Hasan endorsed, adopted, or accepted the views expressed by Benbrika in the conversation. In regard to the state of mind of persons other than Benbrika present in the room, the conversation can be no more than a circumstantial fact bearing upon their respective states of mind, if that be relevant. Of itself, it would not prove a state of mind and the Crown does not necessarily rely upon it for that purpose. 106 Indeed, Mr Dalton's approach is, in one sense, an illustration of "placing the cart before the horse". Counsel says the analysis should start at the beginning by asking – is the conversation relevant to Sharrouf? I would respectfully suggest such an approach may tend to lead in the wrong direction. 107 The correct starting point is to examine the evidence to determine whether, if it were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. The test of relevance will extend not only to the elements of the offence in the light of the plea but to facts that are themselves relevant to the facts in issue. (Smith v The Queen [2001] 206 CLR 650 at (6) per Gleeson CJ, Gaudron, Gummow and Hayne JJ). This test is often best approached by seeking to identify the purpose for which the tender is sought by the Crown, or the basis on which the Crown says it will advance the Crown case. The Crown wishes to tender evidence of the conversation as relevant to prove the existence and nature of the conspiracy, and as relevant to the accuseds' intention in undertaking activities in furtherance of the conspiracy. The Crown wishes to argue that these activities took place in the context of the accused generally receiving advice and inspiration from Benbrika, he being a person who supported and promoted violent jihad as part of his preachings in relation to the theology of Islam. 108 Further, the Crown argues that these activities were undertaken in the context where there was a sharing between Benbrika, and others who reflected his view, of religious material, excluding extremist material. Indeed, the Crown will endeavour to prove that, at least in one instance, there was a sharing of information contained in instructional material held by one of the Melbourne group. Importantly, part of the context, according to the Crown case, is that there is evidence of actual facilitation where some of the Melbourne group assisted the Sydney group in relation to attempts to obtain large quantities of laboratory equipment. Finally, the Crown case is that, if it be the defence position that the various actions alleged to be in furtherance of the conspiracy were actions taken on an innocent basis, the Melbourne evidence (including the conversation) is relevant to rebut this as a hypothesis consistent with innocence, and relevant to support the position contended for by the Crown. 109 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. 110 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. 111 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. 112 I return, however, to the primary basis on which the evidence of the conversation is sought to be adduced by the Crown. It is, as I have said, in the context of the relationship between Benbrika and the Sydney accused. It is in the context of his providing spiritual guidance over an extended period of time. The fact that the spiritual guidance is, on a number of occasions, focused on guidance about religious matters that do not extend to the waging of jihad is beside the point. It is the nature of the relationship that makes the evidence of Benbrika's public and private espousal of violent jihad relevant to the facts in issue, and especially to the existence and scope of the conspiracy. 113 The conversation is not an admission by Sharrouf, Hasan or anyone else present on the February occasion. In so far as the evidence might be capable of reflecting on the state of mind of Hasan and Sharrouf, it is not tendered at this stage as an admission against them or, for that matter, against any of the other men. As to the state of mind of Sharrouf and Hasan, it is no more than a piece of circumstantial evidence. Indeed, as presently minded, I would think that the admission of the evidence might properly be accompanied by a direction indicating that it is not to be relied upon as an admission and that it is not being tendered for any hearsay purpose. If s 60 of the Evidence Act requires that a limitation be imposed on the tender of the evidence, that can be achieved pursuant to s 136 of the Evidence Act. The question of directions, however, is essentially one for the future. I intend to indicate no more than that directions of the kinds I have in have mentioned (and others as well) may well be appropriate when further consideration is given to the issue. 114 For the moment, I am content to state that, in my opinion, the evidence is at least relevant as going to proof of the existence and scope of the alleged conspiracy in the way I have indicated. It needs to be borne in mind that the essential nature of the Crown case suggests that Benbrika, Joud (and perhaps others in Melbourne) were facilitators, in a general sense, of the objects of the Sydney conspiracy. One aspect of Benbrika's position was to facilitate it especially by the provision of a wide range of spiritual guidance and inspiration. The Melbourne men provided material to the Sydney group and, at least in one instance, it is to be inferred, they provided or passed on instructional material or information (the Joud material) to them. The Crown case, as I have said, suggests that an appropriate inference may be drawn from Benbrika's many communications with Sharrouf, his visits to Sydney, their visits to him, his giving of sermons and religious instructions (both publicly and privately) to them, that his extremist views were of value to the Sydney conspiracy. In this latter regard, the Crown case, in connection with the Melbourne men, likens the identified aspects of the Melbourne link to the extremist and instructional material found and seized from the Sydney men themselves. In that sense, it is material which points, at least, to the existence of the alleged conspiracy but particularly to its connection with violent extremism and violent jihad. The conversation presently under discussion fits into that category. 115 I appreciate that Ms Yehia, for example, has argued that, when one has regards to its precise context, the conversation does not have the weight sought to be attributed to it by the Crown. Ms Yehia argued that the outburst, if it might be so described, was in relation to the consequences of breaching Sharia law in an Islamic state. It was not in relation to committing an act of terrorism or any violence on Australian soil, or in a foreign country. The Crown, of course, argues that the conversation must be seen in its wider context. This includes the context that there was a range of spiritual matters being discussed during the evening, and there were extensive discussions about the ordering of laboratory equipment from Haines. These are each valid arguments for consideration but they really raise, in my opinion, a jury question. The question of the weight to be attached to the evidence, and whether it has any significance at all in an evaluation of the overall Crown circumstantial case is entirely a matter for the jury. That consideration does not have a bearing on its relevance nor does it impact upon its admissibility. 116 Messrs Waterstreet and Lange argued that much of the Melbourne evidence is being relied upon by the Crown as tendency evidence. In my opinion, it cannot be regarded as tendency evidence. Section 97 of the Evidence Act has no application at all. The "relationship" between Benbrika and the Sydney men (providing spiritual guidance and inspiration) makes relevant to the facts in issue in the trial the cleric's extremist/fundamentalist views. The "relationship" between some of the Melbourne men and a number of the Sydney accused (facilitating acts in furtherance of the conspiracy - the Haines order; and participating in an act of furtherance - Curranyalpa) flesh out and circumstantially enliven the actions of the Sydney accused. The Melbourne evidence is not evidence of previous conduct or of a previous state of mind (McIlwaine v Ramsay Food Packaging Pty Limited [2006] FCA 828). Rather, it is directly circumstantial in proof of actions which themselves may in turn point to the existence of a conspiracy, its nature and scope, and perhaps to its implementation by the accused. 117 The point needs also to be emphasised that evidence of the conversation (if I may return to that example) is relevant and admissible against all of the accused and not just the person or persons present when it occurred. It is relevant to the nature and scope of the conspiracy. The point is made clear by the authorities I have discussed earlier in these reasons. It is, in terms of the Evidence Act, provisionally relevant, provided there is subsequent evidence of a common purpose and evidence of the participation of each of those accused in the conspiracy. The conversation is "provisionally relevant" against each of the accused because it has the capacity, along with the other material in the Crown case, to give context and colour to the activities of each of the accused. It has the capacity to impact upon the question as to whether those activities were innocent day-to-day activities, or whether they were infected with fundamentalist notions. The evidence will cease to have relevance against a particular accused if there is no evidence of participation by that person, or if the jury is not satisfied that any such activity is referable to the agreement alleged by the Crown. 118 One further point needs to be made. The relevance of the conversation against a particular accused does not depend upon the frequency of contact between Benbrika and that accused. A few examples will make the point. Perhaps at the furthest extreme is the situation of Mr Mulahalilovic. I approach this matter with caution because I have not heard any separate submissions from Mr Turnbull on his client's behalf. It appears, however, from a preliminary reading of the Crown case, that Mulahalilovic came to the alleged conspiracy late in the piece. He does not appear to have had much, if any, contact with Benbrika. In my opinion, however, the conversation would be both relevant and admissible in the case against Mulahalilovic but limited, for the present, to being a piece of circumstantial evidence in proof of the existence and scope of the conspiracy. If there were subsequent evidence of Mulahalilovic's participation in acts that may be said to be in furtherance of the conspiracy, the Benbrika conversation may be used by the jury, along with other evidence, as relevant to its understanding as to whether a conspiracy existed and as to whether Mr Mulahalilovic's actions were referable to that conspiracy and within its scope. 119 A second example is the situation of Mr Jamal: He, by way of contrast with Mulahalilovic, had a reasonable level of connection with Benbrika. There is evidence to show, for example, that Benbrika valued Jamal's services in relation to his computer prowess; and that Jamal sought spiritual guidance from Benbrika in relation to aspects of strict Islamic law. On one occasion, Jamal brought Benbrika from Melbourne to Sydney to enable the cleric to give lessons to Sydney followers. This evidence is contained in the telephone intercepts under debate in the present application. 120 The "maximum damage" conversation would be relevant against Jamal, in the same way as it is against Mulahalilovic. As I have endeavoured to explain, its relevance arises notwithstanding that Jamal was not present when the conversation occurred. Equally, its relevance is not dispelled by any analysis of the number of contacts between Jamal and Benbrika, even though there were a number of those. The telephone intercepts involving Jamal would be relevant against him, not to constitute any admission on his part, but to show as a circumstantial fact that he (and no doubt others) did value Benbrika as a religious guide and inspiration. That fact, if it were circumstantially established, would reinforce the relevance of the February 2005 conversation as admissible against him, as it is against the other alleged conspirators. 121 The telephone intercepts between Jamal and Benbrika are themselves relevant and admissible against the other conspirators. Once again, they are not relevant because they are an admission by Jamal, but because they are relevant to the existence and scope of the conspiracy. 122 These comments concerning Jamal apply with equal, if not greater, force to the position of Khaled Cheikho and to the submissions made on his behalf. His involvement with Benbrika was perhaps less than that of Jamal, but it was not insubstantial. Moreover, he was at a camping trip with three of the Melbourne men, including Joud, who was closely involved with the Haines order. There are many facts, some for and some against, which may strengthen or weaken the level of association between a particular accused and Benbrika and his Melbourne associates. Those facts will no doubt be relevant as matters of jury address to test the strength or weakness of the Crown circumstantial case against each accused. I have no doubt that there will be vigorous debate in the trial about matters of that kind. Arguments about the strength or weakness of individual circumstantial facts, however, do not impair the anterior question of relevance and admissibility of the Melbourne evidence, including telephone calls and association relevant to the existence of the Sydney/Melbourne relationship. 123 It will be apparent from my remarks that I accept there is evidence capable of showing that many of the accused did look to Benbrika as a religious guide and valued the inspiration of his spiritual leadership. This appears from the listening devices and the telephone intercepts. It appears from other factual material which I have already touched upon. It appears as well from the wider chronology I will shortly set out in these reasons when examining in a little more detail the listening device and telephone intercept material. 124 For example, if one turns to Exhibit "F", it will be seen to contain a considerable number of conversations between some of the accused. In those conversations, the accused are speaking to one another about Benbrika or his attendances in Sydney. These conversations provide but one firm basis for a finding that Benbrika was used by the Sydney men as a source of guidance and inspiration. In that regard, it is not necessary to identify each illustration of that kind as involving Benbrika in providing guidance as to "terrorist activities", that is, activities involving the destruction of people or properties. It is sufficient, in my opinion, that the evidence shows the general provision of religious guidance and instruction in relation to a fundamentalist or strict approach to the application of Sharia law to Muslims. 125 It will also be apparent from these reasons that I accept that there was a level of sharing of material between Melbourne and Sydney. Many of the conversations show this to be so. The sharing related not only to hard copy publications, but extended to Internet communication and the possibility of sharing facilities such as Paltalk facilities and the like. 126 As Ms Yehia has argued, it is true that the evidence does not directly demonstrate, with some possible exceptions, that the shared material was necessarily extremist (i.e. terrorist related) or instructional. As Ms Yehia pointed out, sometimes it is not possible to know precisely the nature of the material being shared or being discussed as potentially available for sharing. But, once again, the sharing of material, whether fundamentalist or not, is proffered as a circumstantial fact in the Crown case. The prosecution will argue, no doubt, that it was unlikely the men were sharing information about sporting events or cooking recipes. The defence will respond, no doubt, that this is not good enough and that the facts in this regard may lead nowhere in the Crown case. These differences of approach, are, once again, matters of jury address. They do not impinge, in my view, upon relevance and admissibility. In any event, there is clearly a body of evidence that suggests that the sharing of material between the Sydney and Melbourne men often had a fundamentalist character. The material found in the possession of each of the accused is also of that character. In addition, there is ample evidence of a commonality of such material held by a number of the accused. Consequently, the nature of the relationship between the Melbourne group and the Sydney men is capable of providing a relevant context against which to judge the facts in issue in the trial. 127 Finally, it will be apparent that in analysing the relevance and admissibility of the conversation, I have in effect rejected Mr Dalton's suggested qualification of the general principles. In addition, I am satisfied that the conversation does not, for the reasons I have given, constitute an admission nor is it being tendered for a hearsay purpose. It is not tendency evidence. It is simply a circumstantial fact which, together with other material, may be assessed by the jury in its overall evaluation of the Crown case in determining whether the Crown has proved the existence of the alleged agreement beyond reasonable doubt. Resolution of the issues 128 I will shortly turn to an examination of the detailed material in Exhibits "A" and "B". These are the folders containing the listening device and telephone intercept material. Before so doing, I will address Mr Dalton's arguments relating to evidence falling into the first, third and fourth categories he identified in his written submissions. They can be addressed without descending into the detail necessary to resolve the differences between the parties in relation to the listening device and telephone intercept material relating to Mr Dalton's second category (Annexure 2 material). Category 1 129 This relates to overt acts 10, 12, 19, 20, 21 and 26. There were a group of further overt acts subsequently brought into the argument, but I will deal with those separately when I deal with category 3. Overt act 10 relates to the listening device conversation concerning the ordering of laboratory equipment from Haines Educational. On 23 February 2005, at about 10.12pm, Hasan and Sharrouf are alleged to have discussed an order for laboratory equipment from Haines Educational. The discussion took place at Benbrika's house in Melbourne. Overt act 12 relates to the camping trip at Curranyalpa. The Crown alleges that three of the Melbourne men participated in that camping trip. Overt acts 19 and 20 relate to, first, a discussion between Hasan and Elomar regarding the preparation of an order for laboratory equipment from Haines Learning. Secondly, later that day there was a further discussion involving the same two men, but including as well Sharrouf, Joud and Benbrika. 130 Overt act 21 involves the sending of the order fax to Haines from a pharmacy which was situated a short distance from Joud's premises. Overt act 26 concerns the telephone number related to the Haines order. This had been activated in a false name and the address of the "subscriber" was in the same street and suburb as Joud's residence. A receipt for the phone was later found at Hasan's premises. 131 Mr Dalton confirmed, in his oral submissions, that there was no challenge to the relevance of the evidence underlying each of these overt acts for present purposes. The real concern was with the identification of Benbrika and the other Melbourne men, and with the fact that they came from Melbourne. The concern related to the trial of those men which is currently under way in the Melbourne Supreme Court. 132 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. 133 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. 134 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. 135 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. Category 3 136 I have earlier set out the documents that were found in Joud's possession during the Melbourne search on 17 September 2004. Both Mr Dalton and Mr Buscombe, especially, have argued that there is simply no inference available to suggest that the documents seized were in fact utilised by the accused as resource material for their own endeavours to purchase "weapon caching materials" during the latter part of 2005. Secondly, Mr Dalton has argued that, if the Court is of the view that the seized material is relevant to the activities of the accused, s 137 would require its exclusion or the application of some form of cloaking the identity of Joud, and perhaps his geographical location. 137 Mr Buscombe made a point that, prior to the seizure, there had been but one telephone call between Joud and any of the alleged conspirators. That call occurred on 17 September 2004. It involved Mr Atik, Mr Sharrouf and Mr Joud. It was, Mr Buscombe said, an innocuous call. Secondly, Mr Buscombe pointed to the fact that the documents found on the computer were seized on 17 September 2004, but were never returned to Mr Joud. In those circumstances, Mr Buscombe submitted no inference could be drawn at all of any connection between the information in the seized documents and the activities of some of the accused late in the following year. 138 As might be expected, the Crown took a completely different view of the evidence. The Crown stressed that the activities of the accused in late 2005 were very focused and deliberate. The items purchased, according to the Crown case, were precisely the type of items referred to in the Joud manual necessary for weapon caching purposes and making pipe bombs. The Crown also pointed to the fact that, despite the arrest of the accused on 8 November 2005, the authorities have never found many of the items purchased, nor have they found the significant amount of ammunition that had been purchased. Whether the manual was physically provided to one of the Sydney accused, or whether the information was passed to one or more of them, the Crown argued, is neither here nor there. The Crown suggested that there was in fact "an overwhelming inference" that the accused obtained information from Joud in relation to their activities in late 2005. 139 My present task is simply to assess relevance. I would hold that the evidence sought to be adduced by the Crown of the seizure of the material in Joud's possession is relevant. As to the strength of the inference sought to be drawn, that will be a matter for the jury. Both the Crown and Mr Buscombe have respectable arguments in that regard, and it is not a matter about which the Court should express a view. I would simply hold that the evidence is relevant and admissible. 140 So far as s 137 is concerned, I would make the same remarks that I have made in relation to the earlier overt acts. Finally, there is no need for me to separately list or address the additional overt acts relied on by the Crown. They in fact fall within this category and the ruling I have made will encompass the relevance of the Joud seizure with those overt acts which essentially related to the purchase of the material said to be weapon caching items. Category 4 141 This relates to the visit by Touma, Elomar and Hasan to the vicinity of the nuclear facility at Lucas Heights on 28 December 2004. At approximately 10.30pm they were stopped by police in Touma's vehicle. The men had in their possession a trail bike which they maintained they were in the area to ride. A box of latex gloves was also found in the vehicle. The Crown has made it clear that it does not intend to suggest the men were in the vicinity of the nuclear facility for the purposes of contemplating an attack on the facility. The relevance of the incident is the fact and nature of the police stoppage and search, and the fact that the next day at approximately 9am, Hasan is alleged to have arrived unannounced at Benbrika's home in Melbourne wanting to speak to him. After a brief discussion, arrangements were made for Hasan and Benbrika to meet in a park. The Crown says this was done so that they could have a discussion which would not be overheard. The significance of the event, according to the Crown, is that Hasan wished to inform Benbrika in a covert fashion about their apprehension by the police the previous morning. 142 The issue about terrorist plots against the nuclear facility at Lucas Heights is one that has generated considerable media interest and hype. Since the Crown makes no allegation that the men were contemplating an attack on the nuclear facility, I consider that the reference to Lucas Heights should be withdrawn from the evidence but that the evidence might otherwise be given as relevant to the Crown case. I have discussed this with the Crown and the defence during argument in Court. There is no need for me to say anything further on the topic. There is a separate issue regarding "voice identification" of Mr Hasan in relation to the alleged visit to Benbrika on the day after the Lucas Heights outing. It has been agreed that this issue should be dealt with in a separate pre-trial application. This will take place separately from the present considerations. If the defence succeed in that argument, it will be necessary to reconsider the relevance of the topic. Category 2 143 It is now necessary to go to the detail of Exhibits "A" and "B" to consider the submissions made in relation to the relevance and the admissibility of this material. I propose to do this in the light of the principles of law I have concluded are applicable to the present conspiracy trial. I will not, unless absolutely necessary, repeat the analysis and conclusions contained in the earlier part of the decision. I will simply go through the contested material sequentially indicating whether I will allow or exclude the material. In areas where I consider some further discussion is warranted between the parties, I will indicate that situation. The Crown Chronology 144 The Crown provided me with a chronology. This is relevant to aspects of the background relied on by the Crown as part of the context of the Crown case against which the relevance of the contested material is to be assessed. This chronology (which duplicates, in part, material I have referred to at an earlier part of this decision) places the accused and their association with Benbrika and Melbourne, against the background of a number of the acts alleged by the Crown, to be acts in furtherance of the conspiracy. I will now set out details of the Crown chronology. Chronology relevant to Melbourne argument (Bolded items directly involve or mention Melbourne people) 18 – 20 August 2004 Benbrika visited persons in Sydney, including Sharrouf, Khaled Cheikho and Elomar. He arrived by plane on 18 August 2004, and was picked up at the airport by Atik. He returned by plane at about 5pm on 20 August 2004. 29 - 31 August 2004 On 29 August 2004, Hasan, Elomar and Moustafa Cheikho travelled by car to Melbourne where they met with Raad and Benbrika on 30 August 2004. On the night of 30 - 31 August 2004, Hasan, Elomar and Moustafa Cheikho (who was driving) travelled back from Melbourne to Sydney. The vehicle was stopped shortly after midnight at Sutton Forest by the NSW police. A quantity of camping equipment which appeared to be new (including six sleeping bags; rain coats; camouflage pattern water bottles; two camp stoves; and a small quantity of food) was found in the vehicle. When questioned by the NSW Police as to where they had travelled from, Moustafa Cheikho stated "We've been to Canberra" - "we were looking at buying a boat".[CCS26] 17 September 2004 Joud's computer was searched at 1/56 Birchwood Boulevard, Hoppers Crossing, Victoria during which were located documents entitled " The White Resistance Manual ", " The Terrorists Handbook " and " The Vortex Cookbook ". " The White Resistance Manual " and " The Vortex Cookbook ", which amongst other things, provided instructions on the manufacture of improvised explosive devices (IED), firearms and other weapons. The " weapons caching " section of the document contained instructions on the storage of weapons and ammunition using PVC pipes and includes reference to " slip on type end caps " with the best choice for sealing them being PVC cement. The document recommends sealing the ammunition into airtight containers or zip lock bags before placing them in the containers. 5 December 2004 Joud, Majed Raad and Sayadi travelled by car from Melbourne to Sydney, and spent some time at Sharrouf's house. Joud, Raad and Sayadi stayed that evening at the Motel Formule 1, Casula. [CCS32] 6 December 2004 Benbrika travelled from Melbourne to Sydney by plane. Further, whilst in Sydney, Majed Raad, Sayadi, Joud and Benbrika spent some of the afternoon at Sharrouf's house. Raad and Sayadi also visited a camping store in Lakemba during that afternoon, later returning to Sharrouf's house. Hasan was also present at Sharrouf's house during some of that afternoon. The four men then stayed the night at the Motel Formule 1, Casula. 7 December 2004 Hasan was seen in the vicinity of the Motel Formule 1, Casula. Raad and Sayadi left by car shortly before 11.51am. Sharrouf was seen with Benbrika and Joud and an unknown male leaving the motel at about 12.26pm. They left by car and travelled to Sydney Airport. Joud and Benbrika returned to Melbourne by plane some time after 1.16pm. 29 December 2004 [Contested] Hasan visited Benbrika at 8.56am, in person, soon after being stopped by police in the vicinity of Lucas Heights the day before; 10 January 2005 At 12.37 pm Atik and Sharrouf had a conversation during which arrangements were made for Atik to book Sharrouf's travel from Sydney to Melbourne. Later that day Sharrouf flew to Melbourne. He and Atik visited Benbrika. [CCS39] 31 January 2005 Mark Johnson phone activated [used in booking of Carranyalpa]. 23 February 2005 Hasan and Sharrouf visited Benbrika in Melbourne. Joud was present for some of the meeting, where purchasing of Haines laboratory equipment was discussed 26 February 2005 Eviki Soto phone activated [used in booking of Carranyalpa]. 27 February 2005 Hasan telephoned Benbrika from a public phone on 27 February 2005 asking Benbrika to have Joud call Hasan. There were follow up calls that evening. [CCS41] 16 - 18 March 2005 Attendance by Hasan, Sharrouf, Khaled Cheikho, Elomar with Sayadi, Joud and Raad at the Carranyalpa camp; 28 March 2005 Joud visited Sharrouf in Sydney [TI at 12.19pm on 28 March 2005] 5 April – 3 June 2005 Touma arranged for the purchase of large quantities of ammunition from George Lord 12 – 14 April 2005 Attendance by Hasan, Khaled Cheikho, Moustafa Cheikho, Elomar and Touma at the Mulga Creek camp 4 – 5 May 2005 Hasan, Sharrouf and Elomar visited Benbrika during which the list of Haines equipment later found at Joud's premises (on 22 June 2005) was discussed. Joud was present for some of the discussions. 20 May 2005 Benbrika telephoned Sharrouf at 8.43pm. Sharrouf asks Benbrika to have Joud call him as soon as he can. 26 May 2005 Sharrouf telephoned Benbrika at 8.21pm. Discussion about Joud contacting Sharrouf. 27 May 2005 Sharrouf telephoned Benbrika at 6.27pm. Discussion about Joud contacting Sharrouf. 2 June 2005 Order faxed to Haines from Hoppers Crossing, Victoria. The fax was a typed document and contained an order for 55 different types of items. [CCS106] 9 June 2005 On 9 June 2005, Moustafa Cheikho, using the name " George ", ordered 24 × 400 ml bottles of 6% hydrogen peroxide solution from a Soul Pattinson pharmacy in Menai and provided the mobile number 0422246801 (connected 2 days earlier). 11 June 2005 Sharrouf telephoned Benbrika at 4:50pm during which Sharrouf asked Benbrika to come to Sydney soon: "We need some lessons […] And if you feel like it just a few days lessons, you know, in English, because we have no one in English". Sharrouf offered to arrange for Benbrika's accommodation needs. 12 June 2005 Joud telephoned Sharrouf at 10.27pm, during which there was discussion about Joud needing $3000 . 13 June 2005 Moustafa Cheikho collected the order of Hydrogen Peroxide from the Soul Pattinson pharmacy in Menai. 13 June 2005 Joud telephoned Sharrouf at 8.20pm, during which there was discussion in code (contested). They arrange to speak again later that week. 14 June 2005 Anfony Commito phone (purchased in Melbourne ) activated. 22 June 2005 A search warrant was executed at Joud's premises during which items were found which included the finding of details which were linked, through false names, to two the Sydney accused, Moustafa Cheikho and Hasan [CCS127]. 23 June 2005 Sharrouf telephoned Joud at 12.38pm during which there was a discussion about the raids 'on the boys'. 27 June 2005 Search warrant executed at Hasan's premises. 27 June 2005 Search warrant executed at Elomar's premises. 27 June 2005 Discussion between Sharrouf and Joud on 27 June 2005 about the raids in Sydney and Melbourne [CCS130]; Late July 2005 Enquiries by Baladjam about purchasing 20,000 rounds of 7.62 x 39mm calibre ammunition. 26 July 2005 Hasan (in company with Vetter) purchased laboratory equipment from New Directions for $922.19 in cash [CCS141] 26 July 2005 Benbrika flew from Melbourne to Sydney and Sharrouf organised for someone to collect him from the airport. Benbrika stayed overnight at Sharrouf's residence. Sharrouf, Hasan, Elomar, Jamal and other persons met with Benrika at Sharrouf's residence. 27 July 2005 Touma had discussion with members of his family about need for Jihad, and necessity of innocent people dying etc [CCS145] 28 July 2005 Jamal and Benbrika drove together to Melbourne. 31 July 2005 – 2 August 2005 Benbrika visited Sydney. On 31 July 2005, at 7pm, Sharrouf collected Benbrika and Jamal from Sydney Airport, and drove to the Lakemba Prayer Hall. Sharrouf drove Jamal and Benbrika to the Lakemba Prayer Hall where Hasan and Elomar were amongst the approximately 10 males seen near the Prayer Hall. The same car later drove to Khaled Cheikho's home, and then to Sharrouf's home arriving by about 9.43pm. [CCS151] Benbrika gave a lecture that night at Sharrouf's house. Sharrouf, Hasan, Touma, Moustafa Cheikho, Khaled Cheikho and others were present [CCS152]. Benbrika and Khaled Cheikho were seen together on 2 August 2005 at 11.45am. 1 August - 24 October 2005 Touma arranged to collect quantities of ammunition from George Lord 4 August 2005 Benbrika telephoned Sharrouf on 4 August 2005 at 5.14pm to tell him to watch Benbrika's appearance on " The 7.30 Report" on ABC TV that night. Sharrouf arranged to have " brothers " including Touma, to watch the program at Sharrouf's house. Sharrouf and Hasan made separate arrangements to video tape the interview. [CCS154-156] Benbrika appeared on the 7 .30 Report on ABCTV . Sharrouf had subsequent discussions with Benbrika that night. 5 August 2005 Touma had conversation with his mother about his willingness to undertake Jihad. 9 August 2005 Sharrouf telephoned Benbrika and told him he wanted to speak to him face to face. Sharrouf asked him when he was going to come to Sydney to give a lesson. Benbrika told him that he would be there that week. Benbrika was in Sydney during the period between 11 and 15 August 2005 [CCS161]. 11 – 15 August 2005 Benbrika stayed in Sydney. During this time he met with Sharrouf, Khaled Cheikho, Moustafa Cheikho, Hasan, Jamal and Touma [see next entry] [surveillance at Blakehurst near Tom Ugly's Bridge on 14 August 2005 (B, H, J, KC, MC. KS); surveillance at Chapel Café, Bankstown on 15 August 2005 (B, H, J, KS]. At 4.36pm on 15 August 2005, Khaled Cheikho invited Touma to have dinner with Benbrika and others. Touma said the invitation "pleases me very much". Touma later drove Benbrika to the airport. 18 August 2005 Storage of 24 x 400 ml bottles of hydrogen peroxide located behind Sharrouf's home . 19 August 2005 At 2.47 pm, Benbrika telephoned Hasan and asked him for " Omar's " telephone number. Hasan provided Jamal's mobile telephone number in the false name of Sarah Saavri. 22 August 2005 Mark Jenkins telephone activated 27 August 2005 Hasan contacted Techni Ice [CCS171] 30 August – 1 September 2005 Touma, Sharrouf, and Hasan made enquiries about Benbrika's wellbeing [CCS173] 1 – 2 September 2005 Sharrouf, Hasan, Elomar and Jamal' visited Benbrika in Melbourne. 3 September 2005 John Pham phone activated 4 September 2005 Benbrika telephoned Sharrouf, during which Benbrika asked Sharrouf to email him a book called " Taqfir", which Benbrika had downloaded from Sharrouf's computer when he was there [CCS180] 8 September 2005 Baladjam purchased a conversion kit to convert 9mm pistol to .22 calibre. 13 September 2005 Jeffrey Leydon phone activated 16 September 2005 Sharrouf telephoned Benbrika during which Sharrouf told Benbrika of the arrangements put in place for Benbrika to come to Sydney to give a lesson. They also discussed issues arising from an internet chat room they were using. [CCS204] There was another discussion where Sharrouf tried to convince Benbrika to enter a Paltalk chat room that evening, 23 September 2004, to discuss Islamic teachings. The following evening, Sharrouf asked Benbrika whether he would go online to give a lesson. [CCS208] 22 September 2005 Baladjam purchased quantities of hydrogen peroxide from two chemists. 28 September 2005 George Markis phone activated. From 28 September 2005 Purchases or attempted purchases of sulphuric acid and water from Autoking by Hasan and Jamal [OA44]; Methylated spirits; hydrochloric acid; citric acid and glycerine from Chemical Cleaning Solutions by Jamal [OA45]; Acetone from Peters Hardware by Hasan [OA46]; Batteries; timers by Sharrouf [OA49]; Methylated spirits, acetone and sulphuric acid from Padstow Station Hardware by Hasan [OA57]; 18 October 2005 Tom Clincley phone activated 26 October 2005 Enquiries or purchase of ammunition by Baladjam [OA68, 70, 72] 31 October 2005 – 1 November 2005 Benbrika visited Sydney on 31 October 2005. Moustafa Cheikho and Sharrouf collected him from the airport. Benbrika gave a lesson on that day. He left the following morning. 1 November 2005 At 7.09pm Touma rang Baladjam. They discussed Benbrika. Baladjam confirmed he had met him. They both stated he was "a beautiful man" . Touma stated " that's the guy I've been tellin ya about man". Baladjam replied " I know I know". 1 November 2005 Enquiries by Baladjam with courier company in relation to picking up non-flammable liquid [OA82]; 2 November 2005 Baladjam purchased 300 rounds of 9mm ammunition [OA84]; 3 November 2005 Purchase of storage containers, PVC pipes, end caps etc at Bunnings and elsewhere involving Elomar, Moustafa Cheikho, Sharrouf, Mulahalilovic; Baladjam [OA93, 94, 95, 101, 102, 114]; 5 November 2005 Attempt to collect acetone and methylated spirits by Hasan [OA109] Other background matters 145 In addition, the Crown has provided me with a summary of telephone calls between a number of the accused. In these calls they refer to Benbrika or to arrangements, concerning Benbrika. They refer to his talks or to discussions concerning the nature of talks he has given. I will not set these details out in this decision, but they are contained, as mentioned earlier, in Exhibit "F" on the present application. Secondly, the Crown has provided me with a summary of a selection of seized media commonality documents found in the possession of various of the accused. Once again, I will not set these out, as the detail is to be found in Exhibit "H". One or two illustrations will suffice: Moustafa Cheikho, Hasan, Jamal and Sharrouf had in their possession a document described as "Understanding Jihad (Islamic Holy War)" by Mufti Khubaib Sahib. Another document was a document relating to a "justification" of the suicide operation against the Jews. There are many documents that fall into this category and most of them are of an extremist kind. They were commonly possessed by a number of the accused. Listening device material 146 Exhibit "A" contains a summary of the Melbourne listening device material. It contains also the full listening device transcripts relevant to 29 December 2004, 10 January 2005, 23 February 2005, 4 May 2005, 27 and 31 July 2005, 1 and 11 August 2005. I note that the summaries are said to provide "a reasonable guide" to the contents of the entire transcript, although new transcripts will be prepared in some instances. This will include some editing of the material that is presently found in the exhibited transcripts. 147 The first listening device transcript (10 January 2005) contains material that is reflected in the Crown case statement at para 36. On 10 January 2005 Atik and Sharrouf had a conversation during which arrangements were made for Atik to book Sharrouf's travel from Sydney to Melbourne. Later that day Sharrouf flew to Melbourne under a false name, paid for by Atik using a credit card in a false name (for reasons I have discussed in argument during Court session, I do not consider that the use of the false name and credit card on this occasion is a relevant matter). Sharrouf and Atik visited Benbrika and part of their conversation was captured in a listening device. The conversation includes guidance from Benbrika as to Sharrouf's obligations regarding jihad. 148 In the context of this case, I regard the conversations as more than falls within the description of "coffee table" talk. I consider that it is relevant on the basis that it shows Benbrika providing spiritual guidance to one of the conspirators. It is evidence admissible generally against all the accused in relation to the existence and scope of the conspiracy, having regard to the relationship between Benbrika and the conspirators, including Sharrouf. The discussion is a two sided one and, insofar as it may throw light on Sharrouf's state of mind or be relevant to his intentions, it is also admissible against him in that additional sense. If, however, the Crown intend to place reliance on Sharrouf's state of mind (as reflected in his contribution to any of the discussions) as evidence of the existence and scope of the conspiracy, or as evidence relevant to his activities, it may be necessary to give directions as earlier foreshadowed. Directions in that regard will need to distinguish (or may need to distinguish) between the two ways in which evidence of the discussion is sought to be used. 149 I next come to the conversation detected by way of listening device on 23 February 2005. This conversation, and the discussions contained in it, are relevant to para 39 of the Crown case statement. On 23 February 2005 Hasan and Sharrouf travelled in Hasan's vehicle from Sydney to Melbourne to visit Benbrika. Between 7.51pm and 11.26pm Hasan and Sharrouf were at Benbrika's home. During this meeting, the men appeared to be printing material from a CD entitled "A Guide for the Mujahideen" and they discussed another book entitled "Martyrdom Operations". Later, when Joud was present, Benbrika discussed living in an Islamic state and fighting against "them" if their law threatens Sharia law. Benbrika then discussed "preparing the mujahideen", and made the statements that have been described as the "maximum damage" passage. 150 Importantly, during the lengthy discussions that evening there was a discussion about purchasing or ordering laboratory equipment from Haines catalogue. In my opinion, much of the conversation is relevant and admissible. Discussion about CDs and books relating to the mujahideen fall, for reasons I have already given, into an area of relevance. Similarly, the evidence regarding the publication describing the experience of jihad "giving the experience everything what he has seen" is relevant. Mr Dalton made the point that some of the conversations in this area were about historical matters. For example, he referred to the discussion concerning the defeat of the Ottomans at the Gate of Vienna in 1690 and the discussion about the Russian war in Afghanistan. Mr Dalton made the point that these matters of history could have no relevance to the subject conspiracy. In my opinion, they are relevant in relation to the existence and scope of the conspiracy. They emerge both in the context of the spiritual guidance being provided by Benbrika generally, and to the sharing of information, both religious and historical, in relation to Islamic matters. Further, I consider that the lengthy discussions about printing out matters from the Internet via the computer are relevant in the way contended for by the Crown. 151 There are a number of separate references throughout the listening device transcript of cataloguing, pricing and writing down items from the Haines material. Those discussions are interspersed throughout the evening's discussion and it is not possible, as a matter of practicality, to separate them out and treat them as if they were completely separate from the general nature of the discussions that were had between the participants. The conversations show both Sharrouf and Hasan seeking religious guidance from Benbrika. While I agree with Mr Dalton that a lot of the material is repetitious, and it often does not seem to be about anything terribly important, it is interspersed indistinguishably with matters of relevance. There is also a reference to the advantages of use of the Internet and Paltalk. These subjects are relevant to later conversations between Benbrika and some of the accused in relation to opportunities for further religious tuition from Benbrika. They occasionally "morph" into areas of different but obvious relevance. The conversations include, for example, at page 35 Hasan saying: "So that way if you password is very hard for them to take your computer...see now if you change your password every day they don't...they open...they go...they have to through many things you know to...put your password." 152 The men then discuss the advantages of wireless Internet, its cost and availability. The latter conversations are not particularly relevant, but I mention them to show how they are interspersed indistinguishably with relevant material. 153 At page 38 there is discussion about police surveillance on the roads at night and later, ironically, a reference to the possibility that Benbrika's house might be "bugged". 154 Then there are discussions about heating, ventilation, air-conditioning and painting. None of that appears particularly relevant. That leads on to discussion regarding the correct way to use the laptop and the software on the computer. In turn, this leads to discussions about connection to the Internet and use of the Internet. This is clearly reference to the ability to download material. This immediately leads to a discussion about (presumably) using downloaded material to order Haines equipment from its catalogue. There are references to stock codes, quantities and pricing. 155 In reference to material of that kind downloaded, there was a discussion about copying it and whether Joud should take a copy of it with him. The conversation continues: " Joud : I don't want to have anything at home. Hasan : What do you mean? Joud : Because they could come any time." 156 There then follows a rather inaudible conversation regarding a passport, the relevance of which may be doubtful. This is followed by a discussion regarding whether the call to prayer has to be made before prayers in one's own house. This in turn led to the discussion about the situation in an Islamic state where one of the prophet's instructions for the call to prayer had been ignored. The discussion then moved to another example of the same situation, namely, where the "zakat" (arms tax) had been abolished. While it is true this leads almost directly to the "maximum damage" passage, it appears Benbrika may be making a wider point, since he introduces the passage by saying: "Especially now, the best thing now is to be as a mujahideen (freedom fighter) prepared - everyone has to prepare himself et cetera". 157 Immediately after the "outburst" Benbrika discusses, so it seems, avoiding talking to people who come to his house and who want to interview him. The continuation of the conversation seems to indicate that this may be a reference to the authorities. 158 A little later Joud says: "I'll have it done by tomorrow night". There is a dispute between the Crown and the defence as to what this might refer to. I am not prepared to say that this is an irrelevant statement. 159 The "maximum damage" passage itself is relevant as I indicated much earlier in these reasons. It is relevant against all of the accused to show the existence and scope of the conspiracy. It may be considered, together with the whole of the evidence in the Crown circumstantial case, for that purpose. 160 I turn then to the remaining conversations. The 4 May conversation appears to refer to the Haines order and is relevant. Elomar seeks spiritual guidance. This too is relevant. The 27 July 2005 transcript is an example of Sharrouf asking for religious guidance from Benbrika. It is relevant in the same way as other material in the 10 January 2005 conversation was relevant. I do not, however, consider that the 27 July 2005 (4.18pm) transcript is relevant. The conversation at 7.09pm is relevant as is the 8.47 conversation on that evening. In relation to the last matter, Mr Dalton asked "how this could be relevant?" Counsel submitted that the man Taj el-Din had no association with the accused in connection with the present charge. The conversation, however, is relevant. This is because it shows Moustafa Cheikho and Sharrouf placing reliance on the religious guidance of Benbrika. It also shows the three men's attitude to any Muslim who provides assistance to the authorities. 161 The conversations on 31 July and 1 August are also relevant. The first is a conversation between Benbrika and Sharrouf. The second is between Benbrika, Sharrouf, Touma and Khaled Cheikho. Again, these conversations show the men accepting "information" from Benbrika in two areas. First, in relation to undertaking jihad and secondly, in relation to the number of people who have converted to Islam following the attacks upon the World Trade Center. There is also discussion about a person in the Islamic community giving information against the Muslim. He who "assists the infidels is an infidel". Finally, the listening device of August 11 is relevant in the same way as the "maximum damage" passage. 162 It is not inappropriate to refer at this stage to the Crown chronology and to the details in Exhibit "F". I accept that this body of evidence tends to show that it could not, by any means, be conclusively said that Khaled Sharrouf was, throughout the time of the listening device intercepts, on "a frolic of his own". The chronology shows, with some force, that he was allegedly engaged in activities pursuant to the alleged conspiracy throughout the period, as were other of the accused. Some of those events "surround" the presence or involvement of Benbrika with the Sydney accused. There is a wide-ranging connection between Benbrika and the Sydney accused, not limited to Sharrouf. There is also the presence of Joud, Raad and Sayadi at the Curranyalpa camp. I do not say the argument cannot be presented before the jury. But for the purposes of this pre-trial argument, it is not particularly persuasive. 163 As to the camping trip, it is to be inferred that this was an arrangement that was organised by or with the consent of the Sydney participants at that camp. That has a relevance for the presence of the Melbourne trio at the camp. As to the Haines order, there were conversations on 20 May, 26 May and 27 May in which Khaled Sharrouf had been phoning Benbrika to try and contact Joud (it will be recalled 2 June was the date of the order placed at Haines). In relation to the television interview, details are to be found in the chronology, but they include the fact that Sharrouf, Touma and Hasan were making arrangements to watch The 7.30 Report involving Benbrika and to videotape it. Shortly after Benbrika's return to Melbourne on 15 August during which time he associated with a number of the men, including Hasan, the Cheikhos, Jamal and Sharrouf, there were a number of activities which the Crown says were in furtherance of the conspiracy involving a number of the accused. Finally, Exhibit "F", as I have said, shows a general body of endorsement by a number of the accused for the publicly expressed views promulgated by Benbrika. Baladjam and Touma, for example, call him "a beautiful man". It is true that this is not in the immediate context of The 7.30 Report. By the same token, it is hardly a rejection of the views he expressed on the television program. Telephone intercepts 164 The Crown provided me with a schedule setting out the grouping of a large number of telephone calls. These are calls that essentially relate to communications between some of the Sydney accused and the Melbourne men. The great majority of the calls involve Sharrouf. The admissibility of the material, however, cannot be determined by acceptance of the defence submission that Sharrouf was acting on a frolic of his own. I have already addressed that submission. Once again, this view of the defence submission is not calculated to prevent a submission of that kind being put to the jury. It means no more than that it is not an effective counter to the Crown's arguments on relevance and admissibility. 165 The Crown has selected six groupings. The first relates to "meetings" and the sixth relates to a catch all category described as "association". Both the Crown and the defence are hopeful that some of the calls in the first group may become the subject of agreed facts. For that reason, I will dwell but briefly on that group. In relation to the last category, a number of these calls are innocuous but some objections have been raised. 166 The second and third groups involve "lessons" and "sharing material". Much of the argument centred around these calls, although the general views I have expressed on relevance and admissibility will make it clear, I suggest, why it is I consider that calls in this category are generally relevant and admissible. 167 The fourth group relates to "awareness". This group is said to demonstrate an awareness of the authorities, and the existence of a common concern in relation to such awareness. Generally, I accept the Crown submission that calls of this kind are both relevant and admissible. 168 The fifth category relates to the Haines issue. This includes calls which occurred before or after various of the visits from which an inference can be drawn, according to the Crown, that they either relate to a particular visit or they are in a code around a time relevant to the Haines incident. There is dispute about a number of these calls. 169 I propose to deal with the disputed calls in a brief fashion. As I have said, the general statement of principles relevant to the admission of evidence in a conspiracy case provides a clear indication as to the evidence that is, in my opinion, relevant and admissible. I shall now pass to consider individual telephone calls. Individual telephone calls · Telephone call 19 July at 7pm. In this call Sharrouf discusses possible arrangements for Benbrika to come to Sydney and give lessons. It is relevant as showing the relationship sought to be relied on by the Crown. · Telephone call 23 August at 8.29pm. This shows Sharrouf obtaining a mobile telephone number from Benbrika and obtaining religious guidance - relevant. · Telephone call 4 October 2004 at 5.39pm. Sharrouf contacts Atik. Atik discusses borrowing religious material from Sharrouf and making arrangements to collect Moustafa so that he can take them to the airport - relevant. · Telephone call 4 November 2004 at 4.44pm. Sharrouf calls Jihad Hassan. Hassan telephones Sharrouf, his phone is tapped, all their phones are tapped - this part of the call is relevant, although the remainder is of little value. · Telephone call 10 January 2005 at 12.37pm. Atik calls Sharrouf. They discuss Sharrouf going to Melbourne. They also discuss sharing material, including the life story of Umar bin al-Khattab, a historical ruler of the early Islamic empire and one of the prophet's closest companions - relevant. · Telephone call 25 January 2005 at 5.51pm - not relevant. · Telephone call 23 February 2005 at 9.33am. Benbrika speaks to an unidentified male - not relevant. · Telephone call 27 February 2005 at 5.50pm. Sharrouf rings Benbrika asking for Joud to ring him – relevant. · Telephone call 27 February 2005 at 6.58pm. Benbrika rings Joud and asks him to call "the guy who was here". Benbrika asks Joud "everything is ready?" Joud replies, "Yeah, everything" - relevant. · Telephone call 27 February at 9.25pm. Joud rings Benbrika and tells him "Everything's good" and that "he said next week" - relevant. · Telephone call 28 March 2005 at 12.19pm. Joud speaks to Sharrouf about his forthcoming visit to Sydney. The remainder of the call seems irrelevant but, in view of the Crown submissions about "tiles" being used as a code, the defence may wish to include the remainder of the conversation - relevant. · Telephone call 20 May 2005 at 8.43pm. Sharrouf speaks to Benbrika about the whereabouts of Joud. Asks Benbrika to have Joud call him - relevant. · Telephone call 26 May 2005 at 8.21pm. Sharrouf rings Benbrika to complain that Joud has not called - relevant. · Telephone call 27 May 2005 at 6.27pm. Sharrouf to Benbrika about Joud not calling - relevant. · Telephone call 11 June 2005 at 4.50pm. Sharrouf to Benbrika about Joud not speaking to him. "He should have done tiles for me" - relevant. (The remainder of the conversation is about spiritual guidance on issues of divorce and the fact that Sharrouf says, "Come down. We need some lessons" - relevant.) · Telephone call 12 June 2005 at 10.27pm. Joud speaks to Sharrouf about needing "three g's to buy some stuff" - relevant. · Telephone call 13 June 2005 at 8.20pm. Joud asks, "Do you want me to come up and fix those tiles for you, bro?" Sharrouf replies, "I don't think so, not just yet...do you understand me?" (The Crown suggests the men are talking in code. The defence dispute this. In my view, the inference may be open although, having regard to the contents of other calls, it may not be a strong inference - relevant.) · Telephone call 22 June 2005 at 3.59pm. Atik to Sharrouf. Conversation about Atik's court problems, his lawyers and sharing material - relevant. · Telephone call 23 June 2005 at 12.38pm. Sharrouf to Joud. Discussion about working in "tiles"; raids by police on the boys; and Atik's proposed visit to Sydney - relevant. · Telephone call 27 June 2005 at 8.18pm. Sharrouf to Joud. Discussing police raids and need for caution on the phone, "Don't talk here as well...speak to you later tonight..." - relevant. · Telephone call 27 June 2005 at 10.23pm. Sharrouf to Joud. Discussion about sharing material and phone tapping - relevant. · Telephone call 9 July 2005 at 6.47pm. Joud to Sharrouf. Discussion about gardening and concreting; sharing videos - relevant. · Telephone call 25 July 2005 at 2.24pm. Atik to Sharrouf. Discussion about Sharrouf's health problems; and later Benbrika's health problems; dispute between brothers - not relevant (unless defence want it in). · Telephone call 4 August 2005 at 5.44pm. Sharrouf to Benbrika re taping The 7.30 Report - relevant. · Telephone call 4 August 2005 at 7.57pm. Sharrouf to Benbrika re The 7.30 Report - relevant. · Telephone call 4 August 2005 at 9.11pm. Sharrouf to Benbrika re tape of The 7.30 Report - relevant. · Telephone call 9 August 2005 at 1.40pm. Sharrouf to Benbrika asking the cleric to come to Sydney to give a lesson - relevant. · Telephone call 11 August 2005 at 12.55pm. Sharrouf to Benbrika re visit to Sydney for lessons - relevant. · Telephone call 19 August 2005 at 2.47pm. Benbrika speaks to Hasan to get Jamal's number. Discussion re computer for Benbrika's children - relevant. · Telephone call 22 August 2005 at 11.28 am. Benbrika to Sharrouf re Jamal's telephone number - relevant. · Telephone call 22 August 2005 at 7.29pm. Joud to Sharrouf about Joud's videos - relevant. (Discussion about car not relevant.) · Telephone call 24 August 2005 at 7.26pm. Joud to Sharrouf re hospitalisation of the cleric - relevant. · Telephone call 24 August 2005 at 8.03pm. Sharrouf to Joud and Benbrika re cleric's health - relevant. · Telephone call 25 August at 7.06pm. Benbrika to Hasan re contacting Jamal for a computer - relevant. · Telephone call 25 August 2005 at 8.44pm. Jamal to Benbrika re computer - relevant. · Telephone call 28 August 2005 at 11.54am. Atik to Sharrouf re ASIO raid; sequence of discussion about "something new"; complaint about Joud not giving tapes back - relevant. · Telephone call 28 August 2005 at 9.42pm. Sharrouf to Joud re cleric's bashing; Joud says, "Am I able to talk?" Sharrouf replies, "Yeah, talk, talk, it doesn't matter" - relevant. · Telephone call 28 August 2005 at 11.34pm. Sharrouf to Joud re cleric's bashing - relevant. · Telephone call 4 September 2005 at 5.16pm. Benbrika to Sharrouf asking for a downloaded book to be emailed to him - relevant. · Telephone call 10 September 2005 at ??? Jamal reluctant to speak to Atik on the telephone - relevant. · Telephone call 14 September 2005 at 7.03pm. Benbrika to Sharrouf re cleric coming to Sydney for a week; three lessons to be given; discussion re Islamic books - relevant. · Telephone call 14 September 2005 at 11.17pm. Sharrouf to Joud re the cleric giving a lesson - relevant. (Large parts of the conversation not relevant unless defence wish it included). · Telephone call 16 September 2005 at 4.13pm. Sharrouf to Benbrika re cleric's visit to Sydney; discussion re on-line sessions and content of conversations - relevant. · Telephone call 23 September 2005 at 6.43pm. Sharrouf to Benbrika. Discussion re women in Islam and instructions from the prophet - relevant. · Telephone call 23 September 2005 at 7.30pm. Sharrouf to Benbrika re Paltalk and seeking religious instruction - relevant. · Telephone call 24 September 2005 at 11.21pm. Sharrouf to Benbrika re Jamal's proposed call - relevant. · Telephone call 13 October 2005 at 6.13pm. Sharrouf to Benbrika re religious matters - relevant. · Telephone call 25 October 2005 at 12.32pm. Re religious matters - relevant. · Telephone call 26 October 2005 at 11.16pm. Sharrouf to Benbrika re religious matters - relevant. · Telephone call 2 November 2005 at 8.25pm. Jamal to Benbrika re women (religious discussion) - relevant. (I have concluded that this conversation should not be excluded under s 137. It will be sufficient, if Mr Scragg requires it, than an appropriate direction be given to the jury to avoid misuse and to dispel irrelevant prejudice). The 7.30 Report 170 On 4 August 2005, Kerry O'Brien introduced the ABC's 7.30 Report. The initial commentary was: "As Australians struggle to understand the threat from Islamic militants, we are told they are living amongst us. One of the men recently targeted by ASIO here has broken his silence. Algerian-born Melbourne man Abdul Nacer Benbrika, who is also known as Abu Bakr, says that recent ASIO raids on his home and the banning of his passport earlier this year are unjust..." 171 The program broadcast several portions of an unedited interview with Benbrika. At one stage, when asked about other religions, he said: "I am telling you that my religion does not tolerate other religion, it doesn't tolerate. The only one law which needs to spread can be here or anywhere else has to be Islam." 172 Later, when speaking of Osama bin Laden, Benbrika says: "Osama bin Laden, he's a great man. Osama bin Laden was a great man before 11 September which they said he did it, and until now nobody knows who did it." 173 And later again he was asked whether he should tell his students that they should not engage in violence, that they should not go and train, Benbrika said: "If I do this, it means I am betraying my religion...this is a big problem. There are two laws, there is an Australian law, there is an Islamic law." 174 Finally, Benbrika said: "According to my religion, jihad is a part of my religion and what you have to understand that anyone who fight for the sake of Allah, the first, when he dies, the first drop of blood that comes from him out, all his sins would be forgiven." 175 The Crown originally stated that it wanted to tender the whole of both the edited and unedited version of the Benbrika interview. Consistently with my general analysis of the law and my understanding of the Crown case, the statements of Benbrika, in my opinion, are both relevant and admissible. The jury will be entitled to take into account the extremist views expressed by Benbrika together with the whole of the evidence, in assessing the activities of the individual conspirators. These activities extend to all the overt acts, including the possession of extremist material by each of the accused. The jury will be entitled to take the 7.30 Report evidence into account because of the special relationship between Benbrika and a number of the Sydney men, if they find the relationship is one of spiritual guidance and inspiration. They may do so because of the particular relationship between the Melbourne men and the Sydney group, if they find a mutuality of sharing of Muslim literature, including fundamentalist religious literature; and if they find the facilitation and participation by Joud and others in the Haines order, Curranyalpa and other of the overt acts alleged by the Crown. 176 The relationship and the views expressed by Benbrika are, however, but part of the Crown circumstantial case. The evidence concerning those expressions repeated on The 7.30 Report may, subject to the caveats I have mentioned, be brought to bear by the jury, together with other material, on the activities of the accused in assessing whether the Crown has made out its case as to the existence and scope of the conspiracy. On this basis, the evidence is admissible against all the accused. 177 The evidence may have a wider use in due course, but, for the moment, Benbrika's views are relevant at least in the way I have indicated. His statements on The 7.30 Report, while they may tell us a great deal about his attitudes, are not admissions by the accused. They are not hearsay evidence, nor are they to be used in a hearsay fashion. They are not tendency or propensity evidence, and are not to be used as if they were. There will plainly be a need for directions to make sure that the evidence is used in the appropriate manner. I would expect, as always, a significant degree of assistance from, and cooperation between, counsel in relation to the formulation of appropriate directions. 178 It remains only to address a number of the arguments raised by counsel in relation to The 7.30 Report. These arguments neatly fell into two categories. The first argued that the evidence was not admissible at all. The second sought its exclusion under s 137. 179 One of the arguments advanced by Mr Dalton drew on his argument that evidence of this kind might be regarded, in some way, as an admission by his client and therefore might be used by the jury in a hearsay fashion. As I have said, I do not consider that the evidence is sought to be tendered as an admission by any of the accused, even by those who may have seen the program or the video made of the program. It is trite to say that many people saw the program. Indeed, we all saw the program in Court when it was shown on the screens. It could not be said that, merely by watching the program, the viewers were admitting or representing agreement with Benbrika's statements. Some people may have been in agreement with those views. Others would have regarded them as repulsive. But they are not necessarily admissions by those of the accused who may have seen them. Nor are they tendered as such, at least so far as I understand the Crown case. 180 In the same way, they are not relevant to the case of only the accused who did see the program. Nor, for that reason, is it incumbent upon the Crown to prove that each individual accused saw the program and agreed with the views expressed by Benbrika. Its relevance arises out of the relationship I have described. Benbrika's views are relevant only because of the relationship, and those views are relevant, for present purposes, only as to the existence and scope of the conspiracy. In that way, they are admissible against all the accused. 181 Mr Scragg put Mr Waterstreet's argument in a nutshell. He suggested that the Crown wanted the jury to accept that, for example, Jamal adopted Benbrika's extremist views "simply by reason of the association". This is obviously not the way in which the Crown suggests the evidence is relevant. Indeed, as I have said, it would be appropriate to give a direction to make sure that the evidence is not used in that way. Similarly, the Crown case is not that every time Benbrika met any of the accused, he "exploded" into an outburst of extremist propositions. That is not the Crown case at all, as I have explained. 182 Mr Buscombe argued that the "demeanour" of Benbrika on the ABC program was not relevant. Rather, if the listening device and telephone intercepts went into evidence, it was his demeanour during those conversations that would be relevant. Mr Buscombe's submission, however, oversimplifies the statement made by the Crown. I understood the Crown to be suggesting that the jury are entitled to see Benbrika express the views he did, so as to form their own opinion about the seriousness with which those views were held. In that regard, I think the Crown submission is correct. 183 Ms Yehia argued that the introduction to the program and the comments about Benbrika should not form part of the material to go before the jury. The Crown accepted that those surrounding circumstances were not relevant and that only the views of Benbrika should be placed before the jury. 184 The final matter relates to s 137 of the Evidence Act. Should the name of Benbrika be cloaked or made the subject of a pseudonym for the purpose of the viewing of this material? I have touched upon this in an earlier part of this decision. I will not repeat those remarks. I accept that the Crown's suggestion that Benbrika be known as "Abu Bakr" may be sufficient. On the other hand, depending on the timing of the commencement of the present trial, it may be necessary to consider a more obscure pseudonym. While I am generally sympathetic to the defence position on this point, I continue to maintain that a jury will pay heed to and respect a direction given by a Judge that the trial is to be determined by reference only to the evidence given in the courtroom, and is not to be influenced by outside publicity, whether relating to this trial or any other trial. 185 For those reasons I propose, in general terms, to allow the Melbourne material ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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