Application by Talal Alameddine pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

Category: Principal judgment

Parties: Talal Alameddine (Applicant)
Attorney-General (Commonwealth) (Respondent)
Attorney-General (NSW) (Respondent)

Representation: Counsel:
A Saddik (Sol) (Applicant)
K Pham (Attorney-General (Commonwealth))
E Jones (Attorney-General (NSW))
Solicitors:
Karnib Saddik Law Firm (Applicant)

File Number(s): 2024/429791

JUDGMENT

1. HIS HONOUR: Talal Alameddine (the applicant) has made an application, pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act), for an inquiry into his sentence on 18 May 2018 for two offences:

2. “[T]hat between about 1 October 2015 and about 2 October 2015, he did intentionally possess a thing, namely a .38 special calibre Smith & Wesson model British service revolver, that was connected with the preparation for a terrorist act and he was reckless as to the connection of the thing to the preparation for a terrorist act contrary to s.101.4(2) Criminal Code 1995 (Cth) (‘Criminal Code’)” (“the terrorism offence”); and

3. “[T]hat on or about 2 October 2015, he did supply a pistol, a .38 special calibre Smith & Wesson model British service revolver, to Raban Alou, without Raban Alou being authorised to possess the pistol by a licence or permit, contrary to s.51(1A) Firearms Act 1996 (NSW)” (“the firearms offence”).

4. The maximum penalties were, for the terrorism offence, 10 years’ imprisonment and, for the firearms offence, 20 years’ imprisonment.

5. The applicant entered pleas of guilty to the offences on 3 October 2017. Three other offences were taken into account in the sentence for the firearms offence. Two were counts of possessing a firearm in contravention of a Firearms Prohibition Order (“FPO”) that was in force pursuant to s 74(1) of the Firearms Act 1996 (NSW), which has a maximum penalty of 14 years’ imprisonment. The third offence was possessing a prohibited pistol, which was a semi-automatic handgun or an imitation thereof, without being authorised to possess the pistol by a licence or permit, contrary to s 7(1) of the Firearms Act 1996 (NSW). The maximum penalty is 14 years’ imprisonment with a standard non-parole period of 4 years.

6. In R v Alameddine (No 3) [2018] NSWSC 681, the applicant was sentenced by Johnson J (the sentencing judge) for the terrorism offence to a term of imprisonment for 7 years and 2 months commencing on 15 February 2016 and expiring on 14 April 2023, with a non-parole period of 5 years and 3 months expiring on 14 May 2021, and for the firearms offence (which took into account the three offences on a Form 1), he received a term of imprisonment of 14 years and 2 months commencing on 15 August 2019 and expiring on 14 October 2033, with a non-parole period of 10 years that will expire on 14 August 2029. The total effective sentence imposed was 17 years and 8 months imprisonment commencing on 15 February 2016 and expiring on 14 October 2033, with a non-parole period of 13 years and 6 months expiring on 14 August 2029.

7. The applicant appealed his sentence on seven grounds to the Court of Criminal Appeal (“the CCA”): Alameddine v R [2020] NSWCCA 232. Two grounds were upheld by Bathurst CJ, N Adams J agreeing and Price J dissenting. On 18 September 2020, he was re-sentenced for the terrorism offence to 6 years’ imprisonment commencing on 15 February 2016 and expiring on 14 August 2022 with a non-parole period of 4 years and 6 months expiring on 14 August 2020, and for the firearms offence, 12 years’ imprisonment commencing on 15 February 2018 and expiring on 14 February 2030, with a non-parole period of 8 years and 6 months expiring on 14 August 2026. The total re-sentence was 14 years’ imprisonment commencing on 15 February 2016 and expiring on 14 February 2030, with a non-parole period of 10 years and 6 months that expires on 14 August 2026.

The nature of the application

6. The applicant was sentenced on the factual basis that on 2 October 2015 between about 1.35pm and 2.55pm he supplied Mr Alou with the firearm (“the S&W revolver”), which was loaded, that was the subject of the firearms offence. Between 3.58pm and 4.04pm, Mr Alou supplied the S&W revolver to Farhad Mohammad, who at about 4.30pm used it to murder Mr Curtis Cheng as he left the NSW Police Headquarters in Parramatta. Mr Alou had earlier failed to source a firearm from three other individuals, referred to in the sentencing judge’s remarks as Persons X1, X2 and X3.

7. The sole basis of the application for a review concerns a recording that was relied upon by the sentencing judge in a limited way, and by the CCA on re-sentence. It was a recording of a conversation between the applicant and Mr Alou that occurred between about 1.36pm and 1.42pm, that was partly captured by a listening device while the two men were alone in a vehicle. It was tendered into evidence before the sentencing judge in the Crown case without objection by the applicant, although the parties had differing submissions as to what the applicant could be heard to say. The Crown contended that the applicant could be heard telling Mr Alou “I brang the 30 cal bro”, meaning that he had brought with him a .30 calibre firearm, whereas the words submitted by the applicant were uncontroversial. The Crown case was that Mr Alou rejected that firearm and the applicant supplied Mr Alou with a different firearm, namely, with the S&W revolver.

8. The sentencing judge determined that he could not be satisfied beyond reasonable doubt that the applicant uttered the words attributed to him by the Crown concerning the .30 calibre firearm. Nor could he be satisfied to the same standard of the Crown theory that the applicant supplied a firearm that Mr Alou rejected, before he supplied him with the S&W revolver.

9. His Honour was satisfied to that standard, however, that the conversation included certain words that were conceded by both parties to be audible; that they were discussing “the big one” and “this is bad man”, so that it was not “an innocuous conversation … capable of innocent explanation”. Further, that combined with the evidence of the movements and other interactions of the applicant, Mr Alou and others, the conversation related to the supply of the S&W revolver and the use of oblique language and the meetings in unusual places were designed to minimise surveillance by the authorities.

10. In a subsequent trial before Bellew J involving a different accused (Mustafa Dirani) who was charged with conspiring with the applicant and Mr Alou to do acts in preparation for a terrorist act (namely, to assist Mr Alou to procure a firearm to be used in a terrorist act), Mr Dirani objected to the admissibility of the same recording. Bellew J determined that the recording quality was so poor that it was not possible to determine what was said in the relevant parts of the conversation. Accordingly, it lacked relevance to the issues in that case and therefore was inadmissible: R v Dirani (No 8) [2023] NSWSC 70. Ultimately, the jury in that trial were unable to agree upon a verdict. On a re-trial, the Crown did not re-tender the recording.

11. The applicant submits that:

“There is a doubt or unease that the conversation properly founded a conclusion that the applicant had a high degree of appreciation of the commission of a tenorist [sic] act.”

12. The application is now considered in more detail.

Relevant principles

13. The relevant legislative provisions are ss 78, 79 and 74(2) of the Act. Section 78 provides:

“78 Applications to Supreme Court

(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.”

14. Section 79 relevantly provides:

“79 Consideration of applications

(1) After considering an application under section 78 or on its own motion—

(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if—

(a) it appears that the matter—

(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii) has previously been dealt with under this Part or under the previous review provisions, or

(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

(3A) …

(3B) …

(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).”

15. Section 74(2) of the Act provides:

“In this Part, a reference to a review of, or an inquiry into, a conviction or sentence includes a reference to a review of, or an inquiry into, any aspect of the proceedings giving rise to the conviction or sentence.”

16. In Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 442, Dhanji J summarised some relevant principles in applying the statutory test:

“9 In Li v Attorney General for New South Wales [2018] NSWSC 674, Harrison J stressed, at [15], that ‘[t]he statutory language is not whether there is a doubt or question, but whether there appears to be a doubt or question … The Court does not need to be satisfied that a doubt or question is well founded to order an inquiry, as that is a matter for the inquiry’ (emphasis in original). This was reproduced with approval by Basten JA in Li v Attorney General for New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95 at [19].

10 In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383, Basten JA, at [65], expressed some reservation about relying on the test stated in Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48 of whether there is a feeling of ‘unease’ or ‘disquiet’ in allowing the conviction to stand. His Honour there observed that ‘[t]his language does not assist. There is no purpose served by adopting other words than the statutory language of ‘doubt or question’’: see also Application by Brian Steer under Part 7 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 623 at [14]; Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412 at [13].

11 In Eastman v Director of Public Prosecutions (ACT) (No 2) (2014) 9 ACTLR 178; [2014] ACTSCFC 2, the Court considered the interpretation of s 422 of the Crimes Act 1900 (ACT) (the ACT equivalent of s 79 of the CAR Act, albeit with more conditions before an inquiry may be ordered), and came to the view (at [50]) that the concept of ‘doubt’ is connected to the outcome of the finding of guilt, whereas ‘question’ is linked to the process by which that finding was reached.

12 It is not necessary for the Court in an application under Part 7 to determine if the evidence is ‘fresh’ rather than ‘new’. In relation to this, Johnson J in Application of Holland, [1] said, at [11]:

‘The nature of the jurisdiction under Part 7 involves some flexibility in the material which may be placed before a judge in support of an application for an order directing an inquiry or referring the case to the Court of Criminal Appeal. To invoke the fresh evidence rule at the ss.78-79 stage (as the Crown submissions of 30 November 2006 suggested by reference to R v Ion (1996) 89 A Crim R 81 at 93-94) does not sit well with the function being performed. In decisions concerning applications under s.475, it was observed that the fresh evidence rule had no application: Application of Esposito at page 2; Application of Visser at page 3.’”

The factual background as found by the sentencing judge

17. The factual background of the offences, as found by the sentencing judge, was summarised by Bathurst CJ. Insofar as it is relevant to this application, the summary was as follows:

“12 The offences related to the supply of a loaded revolved to a Mr Raban Alou (Mr Alou) on the afternoon of Friday 2 October 2015. The weapon was subsequently supplied to Farhad Jabar Khalil Mohammad, a supporter of the radical terrorist organisation, Islamic State, who used it on the same day to murder Mr Curtis Cheng as he was leaving the NSW Police Headquarters where he worked as a civilian accountant.

13 At the time of the supply of the revolver to Mr Alou, the applicant was subject to a Firearms Prohibition Order (FPO) made pursuant to s 73(1) of the Firearms Act which had been served on him on 28 October 2014.

14 It appears the applicant first became involved with Mr Alou on 29 September 2015. In his sentencing judgment his Honour recorded and it was not disputed, that from 21 September 2015 Mr Alou was making attempts to obtain a firearm. …

…

16 At 9.31pm on 1 October 2015 Mr Alou and another person attended the vicinity of the applicant’s home in Merrylands. Between 9.00pm and 10.30pm Mr Alou made five attempts to call the applicant using his wife’s mobile phone. The sentencing judge concluded that Mr Alou wished to contact the applicant urgently to obtain a firearm from him for use in a terrorist act.

17 At 10.38pm Mr Alou called the applicant and told him that he attended his house earlier that evening and had seen the applicant’s brother. The applicant confirmed that he was not at home that night but would contact Mr Alou the following day. Mr Alou insisted that the applicant see him that night.

18 Notwithstanding, the next contact between Mr Alou and the applicant was at 10.17am on 2 October. Between 9.30am and 10.17am two unanswered calls were made between them but at 10.17am the applicant sent a message to Mr Alou saying, ‘Salam alakum [peace be unto you] bro what’s happening come around’. At 10.18am Mr Alou sent a message to the applicant, ‘Wa alaykum salam [and unto you be peace] akhi [brother] im in Guildford ill msg wen im outside just wanna come give salams [greetings] to ya’.

19 At 10.29am Mr Alou sent a message to the applicant stating ‘Asalamu alaykum in outside’. At 10.31am Mr Alou parked his car in front of the property next door to the applicant’s house and walked to the vicinity of a nearby property where he moved out of sight.

20 At 10.41am Mr Alou returned to his vehicle and drove home.

21 Between 12.58pm and 1.20pm the applicant attempted to make six calls to one of Mr Alou’s mobile phone services from a public phone. The applicant again used a public phone in the afternoon to communicate with Mr Alou. At 1.10pm the following call took place between Mr Alou and the applicant:

‘ALOU: Yes. Hello.

OFFENDER [Applicant]: Hello.

ALOU: Hello?

OFFENDER: Yeah, how you going, mate?

ALOU: Yeah, who’s that?

OFFENDER: Yeah, yeah, it’s, ah, it’s me.

ALOU: Oh, yeah, mate, yeah. How are you, brother?

OFFENDER: Well, yeah. Good, good, man.

ALOU: Um, tell me, how you been?

OFFENDER: No, good, good, man, I’m just fuckin' – I’m just had – had a job on and I want you just come quote it for me, man.

ALOU: Yeah, yeah. Ah, where brother where at brother?

OFFENDER: You know ... [indistinct] ... - - -

ALOU: Hey?

OFFENDER: I’m now.. I’m at – I’m at my girlfriend’s house. She lives right in front of Jones Park. You know Jones Park?

ALOU: Jones Park? Is that - - -.’

22 Subsequently there were two unanswered calls to Mr Alou made through a public phone. At 1.19pm Mr Alou received a call from the applicant from a public phone who told him to meet him at Jones Park. He agreed to meet the applicant at the park in not less than 15 minutes. Mr Alou at the time was near the Parramatta Mosque.

23 At 1.30pm another person walked from his car towards Mr Alou’s vehicle before he returned to his own vehicle. That person then got into his vehicle and left the Parramatta Mosque driving towards Merrylands. That person was followed by Mr Alou who was driving his own vehicle.

24 At approximately 1.35pm the other person and Mr Alou arrived at the public carpark at Jones Park. Mr Alou then walked across a grassed area where he met the applicant who was carrying a black satchel bag across his body and a Foot Locker brand plastic shopping bag. Mr Alou and the applicant were in conversation for about 15 seconds. The sentencing judge noted that Mr Alou was dressed in a distinctive long black robe which he said would have been meaningful to the applicant in his dealings with Mr Alou that afternoon.

25 At about 1.40pm the applicant and Mr Alou walked to Mr Alou’s vehicle and got into it. Mr Alou drove and the applicant sat in the front seat next to him. A conversation between them was partly recorded by way of electronic monitoring.

26 The sentencing judge made certain findings in respect of this conversation in sentencing Mr Alou for the offence of aiding and abetting a terrorist act: R v Alou (No 4) [2018] NSWSC 221, affirmed on appeal Alou v R [2019] NSWCCA 231. The parties in the present proceedings agreed that he should make the same findings. These findings were in the following terms:

‘94 At about 1.36 pm, the Offender and TA entered the Offender’s vehicle. The Offender drove with this person sitting next to him in the front seat. During the course of the road journey to Merrylands, the Offender and this person had a conversation which was partially recorded by surveillance device. Competing submissions were made as to what exactly was said in this conversation. The Court was provided with different versions of what was said prepared by the Crown, the Offender’s legal representatives and the legal representatives for TA who has a separate sentencing proceeding with respect to charges brought against him.

95 The Court was provided, as well, with an electronic recording of the conversation together with visual surveillance device footage which was said to place this conversation in context.

96 The Crown submitted that in the course of this conversation, TA said ‘I brang the 30 cal bro’. The Crown submitted that this conversation, and the surrounding activities of the Offender and this person, should give rise to a finding that he had brought a firearm to supply to the Offender which was rejected, leading to TA then obtaining the firearm ultimately provided to Farhad Mohammad which was used to shoot Mr Cheng.

97 The version provided by the Offender’s legal representatives (part Exhibit J) asserted that what was said at this point by TA was ‘I prayed the third in town bro’. The version provided by the legal representatives for TA (MFI7) indicated that the words were ‘I prayed the [indistinct] what about you?’.

98 It is not necessary to set out in detail the competing arguments or the evidence which is pointed to in support of these arguments. I have listened to the recording and have viewed the visual surveillance footage which is in evidence. I have considered the various proposed transcripts advanced by the different interests affected. I have had regard to the submissions made by the Crown and Senior Counsel for the Offender on this issue. In addition, the legal representatives for TA provided a written submission on this issue (with the agreement of the Crown) which I have considered. This was a reasonable course given that a similar controversy was to arise in the separate sentencing hearing concerning TA.

99 Having considered all the evidence and submissions on this point, I am not satisfied beyond reasonable doubt that TA said ‘I brang the 30 cal bro’. It is simply not possible to discern with clarity the precise words spoken at that point in the conversation.

100 I have had regard to the evidence generally to determine whether the Court can be satisfied beyond reasonable doubt that this aspect of the events involved the supply by TA of a firearm, which was rejected by the Offender, before the firearm ultimately provided and used was handed over to the Offender. For this purpose, I have considered the footage depicting the movements of the Offender, TA and others in vehicles or meetings in public places on the afternoon of 2 October 2015.

101 Having considered all the evidence and submissions which bear on this issue, I am not satisfied beyond reasonable doubt that the findings sought by the Crown can be made. What can be said to the requisite standard is that the movements and conversations of the Offender, TA and others related to the supply of the firearm which was ultimately used to shoot Mr Cheng. The conversations between persons involving the use of oblique language and the physical meetings between persons in unusual places were designed to minimise surveillance by the authorities.

102 The disputed conversation clearly involved (on all versions) the Offender and TA discussing ‘the big one’ with it being said at one stage ‘this is bad man’. It is clear that this was not an innocuous conversation concerning prayer meetings nor were the convoluted movements of the Offender, TA and others capable of innocent explanation.

103 These activities were part of a plan for the supply of a firearm by TA to the Offender, which was perfected when TA supplied the Offender with the loaded Smith & Wesson .38 revolver. Beyond that, I do not think any more precise and adverse finding as sought by the Crown can be reached.

104 Events which followed the disputed conversation reinforce a finding that the whole process of activities between the Offender, TA and other persons was associated with the supply of a firearm to the Offender.’ [2]

27 At 1.42pm Mr Alou and the other person parked their vehicles parallel to the street where the applicant lived. The applicant and Mr Alou got out of Mr Alou’s car and walked to the front of the vehicle and appeared to be engaged in conversation for some 6 minutes and 42 seconds. At 1.49pm Mr Alou and the applicant returned to Mr Alou’s vehicle. Mr Alou opened the driver’s side door of his vehicle whilst the applicant collected a black satchel bag, a Foot Locker brand plastic shopping bag and a black plastic shopping bag from the front passenger side of the vehicle. Mr Alou closed the driver’s door and walked to the driver’s side front door of the other person’s vehicle and leaned into the window towards that person and appeared to have a conversation with him. At the same time, the applicant was seen carrying the bags and heading into the street where he lived.

28 At 1.50pm Mr Alou and the person with him travelled to Merrylands Oval in Burnett Street, Merrylands. They parked parallel to each other and remained seated in their respective vehicles. Between 1.56pm and 2.04pm Mr Alou and the other person got out of their vehicles and walked into the park where they appeared to talk for approximately 5 minutes.

29 At 2.08pm the applicant entered Merrylands Oval carpark on a bicycle and met with Mr Alou. The applicant was wearing the same sports clothes and this time had a black satchel bag over his shoulder. The applicant and Mr Alou engaged in conversation in the carpark on two occasions for a total of about 5 minutes. The other person remained near the rear of his vehicle within close proximity to the applicant and Mr Alou.

30 At 2.12pm the applicant left the carpark on his bicycle. Mr Alou and the other person drove from Merrylands towards Wentworthville and parked their cars in the vicinity of the Alou family home. At 2.40pm Mr Alou walked towards the person’s vehicle and retrieved an object from the front passenger side of the car. He then drove his vehicle back to Merrylands Oval.

31 At 2.55pm the applicant returned to Merrylands Oval carpark once again on his bicycle. Whilst holding the bag, he walked up to the driver’s door of Mr Alou’s car. The two men were in conversation at the driver’s window for one minute and 24 seconds. The applicant removed a white plastic bag from the front driver’s window of Mr Alou’s car. Both men left the car park shortly afterwards.

32 His Honour concluded and it was not disputed that at some point between the first meeting with Mr Alou and the applicant at about 1.35pm and the final meeting at 2.55pm, a loaded British service revolver was provided by the applicant to Mr Alou. The revolver was unlicensed in Australia and there was no record of it having been imported into Australia legally.

33 The sentencing judge also noted that from the time they met at 1.28pm until they finally parted at 2.55pm, Mr Alou and the applicant were together and frequently in conversation at different locations at Jones Park, Merrylands and Merrylands Oval for a total period of 13 minutes and 21 seconds.

34 The matters I have referred to above were the facts leading to the commission of the offences the subject of each charge and the first offence on the Form 1.

35 Mr Curtis Cheng was murdered on 2 October 2015. The sentencing judge was satisfied that the applicant became aware that it was the revolver supplied by him to Mr Alou which had been used as the murder weapon. He stated that despite this and the continued operation of the FPO, there was no reluctance on the applicant’s part to involve himself criminally with firearms.

36 At 9.20pm on 6 October 2015 the applicant possessed a semi-automatic pistol (or an imitation thereof) on the footstep outside his home in Merrylands whilst several unidentified males watched on. These were the second and third offences on the Form 1 to be taken into account on sentence for the firearms offence. The applicant was seen on CCTV footage to be handling the pistol in conjunction with a cloth.”

The statement of Constable Hannah

18. The Crown material before the sentencing judge included a statement by Constable Chantelle Hannah, which was tendered without objection. Constable Hannah stated that she had occasional contact with the applicant from February 2015. Her interactions with him involved friendly banter, until 5 July 2015. On that day, she noticed “a very obvious change in his appearance and demeanour”, which included him wearing “traditional Islamic dress pant” and having a beard. She stated:

“24. … I Said - ‘What is that you are wearing Talal?’

25. As I said this, I pointed to the traditional Islamic dress pant and Talal ALAMEDDINE’s demeanour changed. He appeared to become angry by this comment and answered pointing to his traditional Islamic dress pant. He screwed up his face and stared at me with squinted eyes. He fiercely grabbed onto his dress pant.

He Said - ‘You respect this!’

I Said - ‘And what's with the beard? That’s new.’

He Said - ‘My beard is for ISIS!’

26. As Talal ALAMEDDINE made this comment he began stroking his beard with his hand and he had a slight smirk on his face. During this time, there was no one close enough to Talal ALAMEDDINE and I to hear this comment made.”

19. The sentencing judge noted that, according to Const. Hannah’s statement, the applicant appeared “quite angry and uncooperative with police” during this incident.

The sentencing judge’s findings

20. The sentencing judge made the findings recorded at [101] to [104] of R v Alou (No 4*)* [2018] NSWSC 221 which are extracted in [26] of Bathurst CJ’s judgment which appears at [17] above, as to the nature of the discussions between the applicant and Mr Alou.

21. The sentencing judge also made findings in his remarks concerning the applicant’s awareness as to the use that would be made of the S&W revolver. At [95] of R v Alameddine (No 3) [2018] NSWSC 681, his Honour found:

“I pause at this stage to note that Alou appears to have been tight-lipped in his dealings with Person X2 and Person X3 concerning the purpose for which he needed a firearm. Unlike Person X2 and Person X3 who had rebuffed Alou’s request for a firearm, the Offender was ready, willing and able to supply the revolver to him. I am satisfied that Alou did reveal at least some information to the Offender in his dealings with him on 2 October 2015 as to the use expected to be made of the revolver which the Offender supplied to him.” (emphasis added)

22. At [105], in reference to the various meetings and discussions that the applicant and Mr Alou had on 2 October 2015 between 1.28pm and 2.55pm, the sentencing judge said:

“I am well satisfied that, during these protracted conversations at various locations, the Offender learned a good deal about what was to happen with the revolver which he provided to Alou, a radicalised and extremist supporter of Islamic State who was moving single-mindedly to the commission of a terrorist act that day using the revolver.”

23. In assessing the objective gravity of the offending, the sentencing judge considered whether the evidence enabled findings to the requisite respective standards of proof as to the applicant’s motive in supplying the S&W revolver and what he knew of the use to be made of it, stating at [138]:

“Neither the terrorism offence under s.101.4(2) of the Criminal Code nor the supply pistol offence under the Firearms Act 1996 (NSW) required proof of a particular motive on the part of the Offender. The question of the Offender’s motive to commit these offences, and his knowledge or belief as to what use was to be made of the revolver, were matters which bear upon the objective gravity of the offences.”

24. The Crown submitted that the Court could be satisfied that the applicant provided the S&W revolver “for free”, which shed light upon his willingness to support the terrorist act, whereas the applicant submitted that, to the extent that a finding on that issue was possible, it was supplied for financial gain. The Crown referred to evidence that the applicant had been radicalised and the fact of the conversations and meetings with Mr Alou to support a finding that his sympathy for ISIS contributed to his motive to supply the S&W revolver. The applicant submitted that the evidence did not permit a finding that the applicant had become radicalised, and that it would be speculative to rely upon the meetings and discussions between the applicant and Mr Alou on 2 October 2015.

25. In his findings on this aspect of objective seriousness, his Honour referred to the applicant’s interaction with Const. Hannah on 5 July 2015, which:

“… was reflective of a level of sympathy for a more fundamentalist view of Islam on the part of the Offender in the form of Islamic State … Although this is but one piece of evidence on this issue, it assists an understanding of the thinking of the Offender as at July 2015.”

26. His Honour continued:

“151 Secondly, the communications between Alou and the Offender on 1 and 2 October 2015 shed some light upon the thinking of the Offender. After unsuccessful attempts by Alou to contact the Offender on the evening of 1 October 2015, Alou finally spoke to the Offender by telephone that evening.

152 An exchange of messages occurred between the two men between 10.18 am and 10.29 am on 2 October 2015 using Arabic greetings. Alou travelled to the Offender’s house in Merrylands at 10.31 am. The Offender made several unsuccessful telephone calls to Alou between 12.58 pm and 1.20 pm with the Offender making the calls from a public telephone. Eventually, the two men spoke with the Offender once again using the public telephone for this purpose. At 1.19 pm, the Offender telephoned Alou again using the public telephone and arranged a meeting at Jones Park. The Offender used the public telephone because of the clearly criminal subject matter of their conversations.

153 Alou met the Offender in Jones Park at about 1.35 pm and, by 1.40 pm, the Offender and Alou were travelling in Alou’s vehicle to Merrylands. The conversation between the two men in the vehicle was the subject of dispute and I have referred earlier to the findings which I made in that respect when sentencing Alou. Although the precise details of what was being said in that conversation were not such as to allow a finding to be made as sought by the Crown, I found that the conversations between the two men, involving the use of oblique language and physical meetings between them in unusual places, were designed to minimise surveillance by the authorities. I noted that the disputed conversation between the two men in Alou's vehicle included the men discussing ‘the big one’ with it being said at one stage ‘this is bad man’. I accept that this was a conversation between two men with respect to the supply of a firearm by the Offender to Alou.

154 The fact that the Offender was prepared to speak to Alou in that way in the vehicle conversation supports the suggestion that conversations between the two men in open areas (such as parks or a street) were likely to involve a level of disclosure by Alou with respect to what was on foot at that time - being his strong desire to obtain a firearm to be used in a terrorist attack. …

155 Discussions took place between the Offender and Alou at about 1.42 pm in Warwick Road, Merrylands and then at Merrylands Oval when they met again at 2.08 pm, before the Offender departed and then returned with further interaction between the two men at Merrylands Oval at 2.55 pm, by which time the revolver had been supplied by the Offender to Alou.

156 What is known up to the point of these meetings and conversations on 2 October 2015, and the context in which they occurred that day, permits an inference to be drawn concerning the subject matter of the conversations taking place between the two men. Supply of the revolver by the Offender could have occurred quickly and simply by the handing over of the item to Alou without any accompanying conversation, let alone the protracted and circuitous process of meeting in different places over a period of about one-and-a-half hours, with the Offender using differing means of transport (including a bicycle) to get to the meetings.

157 It is clear that the Offender was not averse to having direct conversations with Alou, albeit using some antisurveillance measures by use of a public telephone and then having the discussions only in open spaces in parks or a street, apart from the one conversation which was recorded when the two men were in Alou’s vehicle travelling to Merrylands.

158 It is not appropriate to look at each piece of evidence separately for the purpose of fact finding. In my view, the inference ought be drawn that, in the course of these interactions on 2 October 2015, Alou disclosed to the Offender that the revolver was to be used for the purpose of a terrorist attack.

159 In reaching this conclusion, I have kept in mind the almost single-minded or fixated purpose which Alou sought to achieve that very day, and the unlikelihood that he would withhold some features of what was planned in his various meetings and conversations with the Offender which extended for some 13 minutes and 21 seconds. As mentioned earlier, if the mere supply of the revolver was what was to occur, this could have been achieved by way of a very short meeting, not accompanied by conversations and further meetings at different locations.”

27. And later:

“172 Having considered (at some length) the evidence and submissions made with respect to these issues, it is appropriate that I express my findings concerning these matters.

173 Firstly, I am satisfied that the Offender was known to be a person with access to firearms, and a preparedness to supply firearms, as at the time he supplied the pistol to Alou on 2 October 2015. Alou had been searching for a person who was prepared to provide him with a firearm for the purpose of the carrying out of a terrorist act. He had drawn a blank with two other persons, but was put in contact with the Offender. The capacity of the Offender to supply the revolver on 2 October 2015, and his possession of another firearm just four days later, point to a capacity on his part to possess and deal in firearms.

174 Secondly, I am satisfied that the Offender had (as at 1-2 October 2015) at least some sympathy for the fundamentalist religious views of Alou. The unchallenged evidence of Constable Hannah with respect to the events on 5 July 2015 is significant in this respect and cannot be placed to one side in the manner sought by the Offender. The Offender was demonstrating overtly, support at that time for Islamic State.

175 However, as I have said, the evidence does not permit a finding that the Offender supplied the revolver to Alou either for free or for payment of money. It might ordinarily be thought that illegal firearm suppliers would seek payment (either in advance or on supply) where the supply of a firearm takes place. The evidence does not demonstrate that payment was made before or at the time of the supply. Nor, however, does the evidence demonstrate that no payment was made to the Offender at all for his supply of the revolver.

176 What do these conclusions lead to in the circumstances of this case?

177 The Offender was prepared to supply a revolver to Alou in circumstances where he had a strong inkling (at least) from his conversations with Alou, that the loaded pistol was to be used very soon thereafter in a violent attack in Sydney committed for terrorist purposes. This was not a case where, for example, a component for a bomb was supplied which would involve significant further work before a terrorist act could be committed or ammunition was supplied which could only be used if a firearm was located as well.

178 Rather, the Offender supplied to Alou a loaded revolver which was capable of being used immediately, and was actually used less than two hours later to murder Mr Cheng on the street in Parramatta. I am satisfied that, by the time that he supplied the revolver to Alou, the Offender had a good idea that the firearm was to be used soon thereafter for a terrorist attack in Sydney committed in the name of Islamic State. The Offender had acquired this level of understanding from his various discussions with Alou at different locations undertaken on 2 October 2015.

179 A combination of sympathy for Alou’s cause, and the pragmatic activities and motivations of a firearm supplier, came together for the Offender to supply the revolver to Alou with a solid idea on his part as to what was to be done with it soon after.

180 I am satisfied beyond reasonable doubt that findings to this effect should be made. These findings go beyond the admission of bare recklessness implicit in the Offender’s plea of guilty to the terrorism offence. These findings serve to aggravate the objective gravity of both of the offences contained in the indictment. These were very serious examples of crimes committed under the relevant Commonwealth and State provisions.”

28. By way of ultimate findings on objective seriousness, his Honour said:

“197 The fact that the Offender’s involvement in the s.101.4(2) offence occupied a period of about 24 hours only does not operate in any significant way in his favour on sentence. I accept the Crown submission that, if anything, the urgency surrounding Alou’s desire to obtain the revolver from the Offender, (leading to several meetings on the afternoon of 2 October 2015) operated to place the Offender on greater notice of an imminent terrorist attack so that he was on greater notice as well of the unjustifiable risk attaching to his conduct, thereby making his recklessness more serious.

198 I have made findings already concerning what was in the Offender’s mind at the time of the supply of the revolver to Alou. Those aspects operate as well to elevate the objective gravity of his s.101.4(2) offence. I accept the Crown submission that the circumstances in which possession of the revolver was transferred to Alou added further to the objective gravity of the conduct, and to an inference of awareness of a connection with a terrorist act. These circumstances included the covert nature of the meetings between the Offender and Alou, the use of counter-surveillance techniques and the Islamic appearance and clothing of Alou and one of his companions.

199 I have kept in mind that the Offender is not charged with, nor is he to be sentenced for, an offence under s.101.4(1) Criminal Code where the fault element is knowledge and the maximum penalty is imprisonment for 15 years.

200 However, the s.101.4(2) offence in this case involved a very high degree of criminality. It was objectively very serious and was accompanied by a strong element of moral culpability on the part of the Offender.”

The appeal to the Court of Criminal Appeal

The successful grounds of appeal

29. The two successful grounds of appeal concerned the admission into evidence of Const. Hannah’s statement in the absence of an annexure to it, and whether the sentencing judge erred in finding the applicant was sympathetic towards ISIS so that it motivated him to commit the offences.

30. In Const. Hannah’s statement, in a passage in which she described one of the friendly meetings with the applicant that pre-dated the 5 July 2015 meeting, she said that she recorded the information of that earlier meeting in an intelligence report, which was annexed. However, the annexure was not tendered. It transpired that the annexed intelligence report was dated 24 July 2015; that is, after the incident that Const Hannah described as having occurred on 5 July 2015 in which the applicant referred to ISIS.

31. At [107] and [108], Bathurst CJ concluded that the sentencing judge had been inadvertently misled, which obliged the Court to review the conclusion the sentencing judge reached in the passages that are extracted at [25] and [26] above, although it did not necessarily follow that the conclusion reached by the sentencing judge was erroneous. In the process of reviewing the sentencing judge’s conclusion, Bathurst CJ referred to the recording:

“112 … First, as the Crown pointed out, the applicant's comment of 5 July that his beard was ‘for ISIS’, irrespective of the subsequent events could be seen to demonstrate some sympathy for Islamic State. Second, the surreptitious nature of the meetings between the applicant and Mr Alou and particularly the conversation in the car, including the comments ‘the big one’ and ‘this is bad man’ … suggest at least that the applicant was not deterred from supplying the revolver by the knowledge of the possibility that it could be used in a terrorist attack. Further, there is no doubt that it could be inferred that the applicant was aware not only of the substantial risk that the revolver could be used in a terrorist attack, but also of the risk that it could be used in a terrorist attack in support of Islamic State.

113 Having taken all these matters into account, I am not satisfied beyond reasonable doubt that the applicant’s supply of the revolver was motivated in part by his sympathy for Islamic State. Just as the sentencing judge was unable to determine whether or not the revolver was supplied for free or financial reward, I am unable to reach the requisite degree of satisfaction that the supply was motivated by sympathy for Islamic State.

114 It follows that these grounds, to the extent that they deal with the applicant’s motivation to supply the revolver, have been made out.”

An unsuccessful ground of appeal

32. Relevant to this application is one of the unsuccessful grounds, ground 2, namely:

“The sentencing judge erred in finding that Mr Alou disclosed to the applicant that the revolver was to be used for the purposes of a terrorist attack.”

33. The Chief Justice referred to the sentencing judge’s findings as to the applicant’s state of knowledge of what the S&W revolver was to be used for, as extracted above at [21], [22], and [26] (at [156], [158] and [159] of the sentencing judge’s remarks). His Honour rejected the submission that the sentencing judge had attributed such knowledge to the applicant at the time the S&W revolver was supplied. Rather, the finding was recklessness, albeit to a very high degree:

“126 In these circumstances, it seems to me that what the sentencing judge was doing was emphasising the very high degree of recklessness involved in the present case and that the conversations the applicant had with Mr Alou revealed to him that there was a very high risk that the loaded revolver would be used in a terrorist attack and it was quite unjustifiable to take that risk. The sentencing judge was fully entitled to reach that conclusion from the surreptitious nature of the conversations which took place between the applicant and Mr Alou and particularly in the conversation in the motor vehicle to which I have referred at [26] above. His Honour’s findings in R v Alou (No 4) at [101]-[104] (see [61] above), which were accepted as correct by the applicant in the present proceedings, provide powerful support for this conclusion, particularly having regard to the comments ‘the big one’ and ‘this is bad man’.

127 It follows that this ground of appeal has not been made out.” (emphasis added)

34. On resentence, his Honour observed:

“188 Both offences committed by the applicant are of a very high degree of seriousness for offences of this nature. The terrorist offence involved the handing over of a revolver ready for immediate use in circumstances where the applicant was aware of a high degree of risk that the revolver would be used in a terrorist act which could cause death or serious injury to a member or members of the public.

189 Whilst I am not satisfied beyond reasonable doubt that the offence was aggravated by the fact that the applicant was motivated by sympathy for Islamic State in supplying the revolver, at the very least he was indifferent to the fact there was a substantial risk that it would be used in a terrorist act in support of that group. The absence of the particular aggravating factor of sympathy for Islamic State does not alter the fact that the offence is a serious one of this nature, nor does it alter the need for both general and personal deterrence.”

The application for an inquiry

The determination by Bellew J

35. In his reasons for rejecting the Crown’s tender of the recording (R v Dirani (No 8)), Bellew J did not identify what parts of the conversation on the recording, as submitted by the Crown, were sought to be excluded by the defence. His Honour stated, relevantly for the purposes of this application:

“7 I listened to the recording in Court in the presence of the parties more than once. Having done so, I was simply not able to ascertain what was being said, other than odd single words which, of themselves, were of no probative value.

8 Subsequently, I listened to the conversation several times in Chambers with the aid of headphones. The result was the same. Although it was possible, after several attempts, to ascertain certain isolated words, they were disjointed.

9 In these circumstances, the only available conclusion was that the evidence was not relevant within the meaning of s 55 of the Evidence Act 1995 (NSW).

10 In these circumstances, I ruled that the evidence should be excluded.”

36. As noted, on Mr Dirani’s retrial, the Crown did not seek to re-tender the recording.

The nature of the application

37. The applicant submitted in writing:

“10. The sole basis for the application for an inquiry is that [the recording], which was tendered, without objection at his sentence hearing, is not capable of establishing that the applicant had any appreciation of a terrorist act. This submission was advanced on the applicant’s behalf in the Court below.

…

16. By his plea of guilty the applicant accepted that he was aware of a substantial risk that the circumstance of connection existed, and it was unjustifiable to take that risk.

17. For reasons developed below the applicant was ultimately sentenced on the basis that his criminality was enlarged because his was a high degree of recklessness ‘particularly’ because of the content of [the recording].

18. Given the way in which the conversation was deployed by the appellate court in the re-sentencing exercise so as to elevate the applicant’s criminality, in circumstances where the Court was not invited to listen to it, there appears to be a doubt or question as to the proper basis upon which the applicant was resentenced.

19. It was quite orthodox not to invite the appellate court to listen to the audio, however there was an agreement in respect of what [the recording] was capable of proving, and this did not extend to the way it was ultimately deployed. …”

38. The applicant further submitted:

“25. In sentencing the applicant, Johnson J did not find that [the recording] established the applicant's awareness of a terrorist act. There was agreement between the parties on the appeal as to the use that could be made of [the recording] and this is recited in the judgement [sic] (of Bathurst CJ) at [26] …

26. Bathurst CJ however ultimately concluded that there was a more precise adverse finding to be made namely that the conversation underpinned the ‘very high risk that the loaded revolver would be used in a terrorist attack and it was quite unjustifiable to take that risk.’ In this way, in a consideration of Ground 2, Bathurst CJ did not confine the evidence to the use agreed between the parties on the appeal. …”

39. In this respect, the applicant referred to what Bathurst CJ said in the italicised portion of [126], extracted above at [33], and continued:

“27. In upholding the application for leave to appeal against sentence, Bathurst [C]J in resentencing the applicant concluded at [188] of the judgement [sic] that the applicant was aware of the ‘very high degree of risk’ that the revolver he supplied would be used in a terrorist act finding earlier in the judgement [sic] that this was factually substantiated ‘particularly’ from [the recording].

28. As adverted to above, [the recording] was found to be irrelevant for this purpose by Bellew J.

29. Ultimately in the re-sentencing exercise, Bathurst CJ did not reconsider this issue of risk for himself as required by Kentwell v The Queen [2014] HCA 37 (9 October 2014) at [42] and adopted the conclusion of the sentencing Judge which was found to be ‘open.’

30. This conclusion gives rise to unease in circumstances where a judge of this court, tasked with listening to the recording has determined that it does not have the relevance assigned above.

31. This issue of how the conversation was erroneously deployed upon re-sentence was not a matter which could have been fully dealt with in the applicant’s appeal nor is it an error which could possibly ground a special leave question.

32. The unease which arises from other judicial consideration of [the recording] and the use that has been made of the evidence in the judgement [sic], is properly resolved by an inquiry.

33. In the instant case it is contended that [the recording] including in context was not capable of establishing a high degree of recklessness as to a tenorist act, and, having used the evidence in this way has resulted in the imposition of more severe penalty than was warranted.”

40. The applicant’s submissions as to how his application arises from the use made of the recording in the sentencing judge’s findings and those made by the CCA are not, with respect, clear. The applicant initially submitted that “the sole basis” of the inquiry is that the recording is not capable of establishing that the applicant had “any appreciation of a terrorist act”.

41. As I understand it, the applicant submits that in rejecting the second ground, the Chief Justice took a view of the applicant’s level of knowledge that was unsupported by the evidence by placing undue emphasis on the recording which, the applicant submits, is now discredited; that is, that the Chief Justice determined that the recording “underpinned” a finding that the applicant was aware at that time there was “a very high risk that the loaded revolver would be used in a terrorist attack and it was quite unjustifiable to take that risk” (Bathurst CJ at [126]). This finding by the Chief Justice elevated the objective seriousness of the offending, since it involved a higher degree of recklessness for the terrorism offence.

42. The applicant further submits that this was a different finding to those made by the sentencing judge and one that was dependent upon the recording, so that it was “erroneously deployed upon re-sentence”. Further, Bellew J’s determination in R v Dirani (No 8) that he could not discern what was said on the part of the recording relied upon by the Crown in that case, so that it lacked relevance and therefore was inadmissible, heightens the unease or disquiet arising from the reliance placed on it by the Chief Justice.

Written submissions by the Crown and in reply by the applicant

43. Written submissions have been received in response to the applicant’s submissions from the Attorney General of New South Wales (“the State Attorney General”) and the Commonwealth Attorney General (including in reply to the applicant’s submissions in reply), broadly to the effect that the CCA did not make different findings to the sentencing judge based on the recording and therefore there was no consequent elevation of the applicant’s criminality, and that there is a substantial overlap between the application and the second ground of appeal that was dismissed by the CCA.

44. In submissions in reply filed on 5 May 2025, the applicant appears to be at cross-purposes with the submissions of the State Attorney General. The applicant noted that the State Attorney General submitted that the sentencing judge’s findings relied in part on “other evidence” and then notes that the applicant “has always rejected the Crown’s assertion of what could be heard in the recording”. I did not understand the State Attorney General to have submitted that the sentencing judge relied on the recording other than as to the words that the parties agreed could be heard.

45. The plaintiff attached a copy of the recording, presumably as an invitation to the Court to listen to it and form its own opinion for the purposes of this application. That course is rejected. The issues were raised, and the relevant material identified, in the application filed on 20 November 2024. In any event, it would be inappropriate on this review of the material for an opinion to be formed from listening to the recording as to whether in my opinion it is audible and if so, what can be heard. Both Courts accepted the common parts of the versions of what could be heard on the recording that had been submitted by the parties before the sentencing judge.

46. The applicant also submitted that “other evidence” included the statement of Const. Hannah and, referring to [150] of the sentencing judge’s remarks, said:

“The Applicant submits that this statement was the foundation for the ‘high degree of recklessness’ finding as the sentencing judge forms a view that this piece of evidence could establish the aggravating mental state of the Applicant.”

47. In the course of written submissions in reply to the Commonwealth Attorney General, filed on 10 June 2025, the applicant referred to the differences between the findings of the sentencing judge and the CCA in more detail, submitting:

“8. The Commonwealth Attorney-General asserts that the sentencing judge and the Court of Criminal Appeal (CCA) consistently found that Mr. Alameddine exhibited a high degree of recklessness regarding the use of the firearm. However, this overlooks the nuanced differences in their assessments:

a. The sentencing judge refrained from making a definitive finding that Mr. Alameddine had knowledge of the intended terrorist act, citing insufficient clarity in the evidence; and

b. The CCA, while upholding the sentence, emphasised the high degree of recklessness but did not conclusively establish knowledge.

9. This divergence forms the founding presence of a question regarding the interpretation of Mr. Alameddine’s mental state at the time of the offence, specifically the finding of an aggravating circumstance (i.e. the high degree of recklessness).”

Consideration

48. In my view, it is apparent from the relevant parts of the judgments of the sentencing judge and the CCA that are extracted earlier in this determination that, ultimately, the same approach was taken to the evidence of the recording in both Courts.

49. That is to say, that although the sentencing judge rejected the Crown submission that the applicant could be heard saying “I brang the 30 cal bro”, his Honour nevertheless concluded that the fact of the conversation and the agreed words that were said, in the context of the other conversations and interactions between the applicant and Mr Alou and the anti-surveillance steps taken, was circumstantial evidence that persuaded the sentencing judge beyond reasonable doubt that the applicant knew at the time that he supplied the loaded S&W revolver to Mr Alou that that there was a very high risk that it would be used in a terrorist act.

50. As to the sentencing judge’s findings to that effect, see the extracts from the sentencing judge’s judgment above at [22], [26]–[28] (in particular, the sentencing judge’s remarks at [153] and [158], [176]–[180] and [197]–[198]). In the passage extracted at [28] above, at [199] of the sentencing judge’s remarks, his Honour expressed cognisance of the fact that the applicant was not charged with the more serious offence (s 101(4)(1) of the Criminal Code) of having knowledge of the use to which the S&W revolver was to be put, which had a heavier penalty.

51. The references by the Chief Justice to the level of the applicant’s knowledge as to the use to be made of the S&W revolver were mostly by way of his Honour summarising the findings of the sentencing judge. Two passages in which the Chief Justice made findings on the issue of the applicant’s knowledge are at [33] and [34] above.

52. The first passage, at [33] above, was his Honour’s conclusion as to the merits of ground 2, which was that the sentencing judge had been entitled to find that the applicant appreciated that “there was a very high risk that the loaded revolver would be used in a terrorist attack and it was quite unjustifiable to take that risk”. The reference to the recording that concludes that paragraph is to be understood in the context that the sentencing judge’s finding flowed from all the circumstances, but the utterances of the agreed words in the recording added significant weight to that finding.

53. In the passage extracted at [34], his Honour succinctly expressed his finding as to the degree of the applicant’s knowledge, which is in similar terms to that found by the sentencing judge:

“The terrorist offence involved the handing over of a revolver ready for immediate use in circumstances where the applicant was aware of a high degree of risk that the revolver would be used in a terrorist act which could cause death or serious injury to a member or members of the public …

… in supplying the revolver, at the very least he was indifferent to the fact there was a substantial risk that it would be used in a terrorist act in support of [ISIS].”

54. In so finding, it is apparent from what the Chief Justice said at [126] (see [33] above) that his Honour adopted the same approach to the relevance of the recording to the finding of the degree of the applicant’s knowledge as the sentencing judge had done.

55. Accordingly, I reject the applicant’s submission that the Chief Justice found that the recording “underpinned” the finding that the applicant “was aware of a high degree of risk that the revolver would be used in a terrorist act”. Rather, the agreed words and the circumstances of the recording were parts of many circumstances that founded the findings. I also reject the submission that the recording was “erroneously deployed upon re-sentence”.

56. As to the submission in reply by the applicant to the State Attorney General that the sentencing judge’s finding rested heavily on Const. Hannah’s statement, I note that at [150], the sentencing judge said that the statement was “but one piece of evidence on this issue”.

57. The determination of Bellew J in R v Dirani (No 8) that the recording could not be understood and therefore was irrelevant in that case is at odds with the joint position of the parties before the sentencing judge and in the CCA that the parts of it that were accepted by both Courts were in fact audible. The applicant was legally represented before the sentencing judge and in his appeal to the CCA by eminently capable senior counsel who clearly were satisfied that the agreed words were in fact audible, since their audibility was an agreed position and the tender by the Crown of the recording in the sentence hearing was not opposed or challenged on appeal. The sentencing judge stated that he listened to the recording. It is inappropriate to speculate as to how that difference in perception with Bellew J came about.

58. For these reasons, pursuant to ss 79(3)(a)(i) and (b) of the Act, the application is refused.

**********

Endnotes

Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251.

Emphasis added.