The Court upheld appeals by two of the men (Benbrika and Joud) against their convictions for the related offence of possessing "a thing connected with preparation for a terrorist act". The Court concluded that the trial judge had misdirected the jury as to the requirements for establishing that offence.

In the case of Benbrika, the Court directed that he be retried on the possession count. In the case of Joud (who had been convicted on two separate possession counts), the Court directed that verdicts of acquittal be entered on those counts, on the basis that there was insufficient evidence on which a jury could convict him.

5. The Crown case at trial was that the applicants were members of a Melbourne-based terrorist organisation, which was fostering or preparing the doing of a terrorist act in Australia or overseas, with the intention of causing death or serious physical harm in order to advance a political, religious or ideological cause. The proposed terrorist act was alleged to be the intentional detonation of one or more explosive or incendiary devices, or the use of weapons. The cause to be advanced by terrorist action was said to be the belief - taught by Benbrika and accepted by members of the organisation - that they were under a religious obligation to pursue violent jihad against the kuffar (non-believers).

6. The Crown advanced a largely circumstantial case, the key elements of which were as follows:

(1) members of the organisation referred to themselves collectively as the jema'ah, an Arabic word meaning 'group' or 'association', and took an oath of allegiance to Benbrika called a bayat;

(2) some members of the organisation undertook specific roles and responsibilities;

(3) members received religious instruction from Benbrika in the pursuit of violent jihad as a religious obligation;

(4) in order to instil the motivation and knowledge necessary to commit terrorist acts, the organisation collected extremist Islamic doctrinal and operational material and circulated it among members;

(5) money was collected from the members to fund the organisation's activities and some members undertook illegal activities, including illicit car re-birthing and credit card fraud, in attempts to raise additional funds for the organisation;

(6) the organisation spent money from the fund on group activities and other outlays as approved by Benbrika; and

(7) members also undertook team building/bonding activities, including trips away to training days and camps, sometimes with other terrorist organisations.

In an appeal hearing over four days, the applicants advanced (collectively and individually) more than 30 grounds of appeal against conviction. Of these, the only grounds upheld were those relating to the possession counts.

494. In our view, the evidence clearly demonstrated that there was an 'organisation' within the meaning of that term required by the Code. It also demonstrates that those accused who were convicted of [membership] were knowing and intentional members. That 'organisation' existed for the purpose of readying its members to carry out violent jihad when, and if, directed so to do by Benbrika. It therefore existed to foster, or prepare, the doing of a terrorist act or acts.

Four factors in particular affected the consideration of the sentence appeals, as follows:

1. The quashing of the possession convictions against Benbrika and Joud meant that each fell to be re-sentenced whether or not any other ground of appeal succeeded.
2. Contrary to the decision of the trial judge, the Court held that the history and nature of the terrorist organisation was relevant to the objective seriousness of an offence of being a member of the organisation (see extracts below). Having regard to that factor, and to the maximum penalty of ten years' imprisonment fixed by Parliament, the Court concluded that the sentences on the membership counts were excessive.
3. In some instances, the offences overlapped. That is, some of the conduct relied on to support one count also supported another count against the same person. Adjustment of sentences was necessary to ensure that the offender was not doubly punished for the same conduct. In the case of Benbrika, the overlapping offences were those of being a member, and being the director, of the organisation. In the case of Joud and A. Raad, the overlapping offences were those of being a member of, providing resources to, and attempting to provide funds to, the organisation. (The "resources" offence was committed by each man's having provided his own services to the organisation as part of the leadership group.) In the case of Sayadi, the overlapping offences were the membership and "resources" offences.
4. Appropriate relativity of sentencing between co-offenders is a fundamental aspect of equality before the law. Once it became necessary to re-sentence Benbrika and Joud, these considerations of equal treatment necessitated adjustment of the sentences imposed on co-offenders for the same offences.

As to the significance of the organisation's history, the Court said:

554. In our view, the history of an organisation is relevant to both the objective seriousness of an offence of being a member of the organisation and the moral culpability of the offender.

555. So far as objective seriousness is concerned, the history of the organisation is relevant because it informs the nature of the organisation. The definitions of 'terrorist organisation' and 'terrorist act' are extraordinarily broad. Therefore, on the one hand, a 'terrorist organisation' may include anything from a rag-tag collection of malcontents whose commitment to terror never advances further than a conception that one day, some time, they will undertake a 'terrorist act' of as yet undetermined nature and scope. On the other hand, it may include a 'terrorist organisation', like Al Qaeda or Jema'ah Islamiah, with a proven record of committing the worst terrorist acts imaginable and, presumably, with more of the same in constant planning and preparation. Axiomatically, the activities of the former class of organisation are less likely to result in the commission of a terrorist act than the latter. Thus, other things being equal, the objective seriousness of an offence of joining the former kind of organisation is likely to be eclipsed by the objective gravity of subscribing to the latter.

556. So far as moral culpability is concerned, the history of the organisation is relevant because it may say something about the way in which prospective members are attracted to the organisation and, therefore, about their state of mind. For example, with an organisation of the former kind, it is possible that an offender may join the organisation in a state of uncertainty or confusion. They may thereafter have been seduced by a process of indoctrination to embrace the terrorist philosophy and objectives of the organisation. With an organisation of the latter variety, however, logic and common sense imply the probability that the offender will be committed to the terrorist philosophy and objectives of the organisation before being admitted to its membership, and so they go into it with their eyes wide open. Without wishing to be prescriptive about it, we think the difference provides a basis to say that an offender of the former kind is less morally culpable than the latter.

557. We do not suggest that the criminal culpability involved in the membership of a terrorist organisation is ever to be regarded as less than very serious, even where the activities of the organisation go no further than acts preparatory to the commission of a terrorist act.[1] Nor do we overlook the vital importance of denunciation and general deterrence in sentencing offenders for offences of this kind. Nevertheless, Parliament has made the offence punishable by a maximum penalty of ten years' imprisonment, which implies that sentences of close to ten years are reserved for the worst kinds of cases. From that, one may infer that it was intended there be scope for the recognition of a range of objective seriousness and moral culpability. It would be wrong in principle to ignore the range of penalty which that entails.

• Benbrika: the sentence for membership of the organisation was reduced from seven years' imprisonment to five years. There was no change to the sentence for directing the organisation (15 years) or the total effective sentence (15 years) or the non-parole period (12 years);
• Joud: the sentence for membership of the organisation was reduced from six years and six months' imprisonment to four years and six months. There was no change to the sentence for intentionally providing resources to the organisation (eight years). The sentence for attempting to make funds available to the organisation was reduced from eight years' imprisonment to five years, because the objective gravity of Joud's offending was more towards the lower end of the range than a sentence of eight years implied and because of the overlap with the membership offence. The total effective sentence was reduced from ten years' imprisonment to eight years, and the non-parole period from seven years and six months to six years;
• Sayadi: the sentence for membership of the organisation was reduced from six years and six months' imprisonment to four years and six months. The sentence for intentionally providing resources to the organisation was reduced from eight years' imprisonment to seven years, to ensure appropriate relativity with Joud. The total effective sentence was reduced from eight years' imprisonment to seven years and the non-parole period from six years to five years and three months;
• Merhi: to ensure appropriate sentencing relativity, the sentence for membership of the terrorist organisation was reduced from six years' imprisonment to four years, and the non-parole period from four years and six months to three years;
• A Raad: to achieve parity with Joud, the sentence for membership of the organisation was reduced from six years and six months' imprisonment to four years and six months. There was no change to the sentence for intentionally providing resources to the organisation (eight years) but, for the same reasons as related to Joud, the sentence for attempting to make funds available to the organisation was reduced from eight years to five years. The total effective sentence was reduced from ten years' imprisonment to eight years, and the non-parole period from seven years and six months to six years;
• E Raad: to ensure appropriate sentencing relativity, the sentence for membership of the organisation was reduced from six years' imprisonment to four years, and for attempting to make funds available to the organisation from six years' imprisonment to four years. As a result, the total effective sentence was reduced from seven years and six months' imprisonment to six years, and the non-parole period from five years and nine months to four years and six months;
• Haddara: to ensure appropriate sentencing relativity, the sentence for membership of the organisation was reduced from six years to four years.

The re-sentencing is tabulated in full in Appendix A to this summary.

NOTE: This summary is necessarily incomplete. The only authoritative pronouncement of the Court's reasons and conclusions is that contained in the published reasons for judgment.

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally directing the activities of a terrorist organisation, knowing that it was a terrorist organisation (s 102.2(1)).

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)).

Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)).

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)).

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)).

Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)).

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)).

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

[2010] VSCA 281

R v Benbrika & Ors [2009] VSC 21 (Bongiorno J)

CRIMINAL LAW - Terrorism offences - Part 5.3 of Schedule to Criminal Code Act 1995 (Cth) - All applicants convicted of intentionally being members of a terrorist organisation - Some applicants also convicted of further offences under Part 5.3.

CONVICTION - Directions as to meaning of 'organisation', 'fostering', 'member' - Consideration of Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303, Ul-Haque v The Queen [2006] NSWCCA 241, Kibby v Registrar of Titles [1998] VSC 148; [1999] 1 VR 861 and (2007) Lodhi v The Queen (2007) 179 A Crim R 470 - Failure to exclude certain evidence - Failure to discharge jury - Directions on items 'possessed' - Consideration of R v Zafar [2008] QB 810 - Whether verdicts unreasonable or cannot be supported by the evidence.

SENTENCE - Whether history of organisation should affect sentence imposed - Whether sufficient weight given to onerous conditions of incarceration and applicants' mental state - Whether sentences imposed manifestly excessive - Issues of parity - Applicants re-sentenced.

1 There are before the Court applications by Abdul Nacer Benbrika, Aimen Joud, Fadl Sayadi, Abdullah Merhi, Ahmed Raad, Ezzit Raad, and Amer Haddara, each of whom was found guilty by a Supreme Court jury of terrorism offences against Part 5.3 of the Schedule to the Criminal Code Act 1995 (Cth) (the 'Code'). Each applicant seeks leave to appeal against conviction and each applicant (except Sayadi) seeks leave to appeal against sentence.

2 By an amended indictment, each of the applicants - together with Shane Kent, Hany Taha, Bassam Raad, Shoue Hammoud and Majed Raad - was alleged to have committed a series of offences against Part 5.3 of the Code at Melbourne on various dates between 1 July 2004 and 8 November 2005. Izzydeen Atik was originally charged with terrorism offences under the Code arising from the same events. In July 2007, he pleaded guilty to two such offences, and was subsequently sentenced for them.

3 The trial of the remaining 12 accused began in early February 2008. After a hearing lasting almost eight months, each of the applicants was found guilty of intentionally being a member of a terrorist organisation, knowing that it was such an organisation, contrary to s 102.3(1) of the Code. Some of the applicants were also convicted of further offences under Part 5.3 of the Code. Most importantly, Benbrika was convicted of intentionally directing a terrorist organisation, knowing that it was such an organisation, contrary to s 102.2(1) of the Code. Of the remaining five accused, four were acquitted on all counts and the jury were unable to reach a verdict in respect of the fifth.

4 The offences with which each applicant was convicted, and the sentences imposed, were as follows:

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally directing the activities of a terrorist organisation, knowing that it was a terrorist organisation (s 102.2(1)).

Possession of a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4(1)).

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)).

Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)).

Possession of a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4(1)).

Possession of a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4(1)).

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)).

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)).

Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)).

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)).

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

5 The Crown case at trial was that the applicants were members of a Melbourne-based terrorist organisation, which was fostering or preparing the doing of a terrorist act in Australia or overseas, with the intention of causing death or serious physical harm in order to advance a political, religious or ideological cause. The proposed terrorist act was alleged to be the intentional detonation of one or more explosive or incendiary devices, or the use of weapons. The cause to be advanced by terrorist action was said to be the belief - taught by Benbrika and accepted by members of the organisation - that they were under a religious obligation to pursue violent jihad against the kuffar (non-believers).

6 The Crown advanced a largely circumstantial case, the key elements of which were as follows:

(1) members of the organisation referred to themselves collectively as the jema'ah, an Arabic word meaning 'group' or 'association', and took an oath of allegiance to Benbrika called a bayat;

(2) some members of the organisation undertook specific roles and responsibilities;

(3) members received religious instruction from Benbrika in the pursuit of violent jihad as a religious obligation;

(4) in order to instil the motivation and knowledge necessary to commit terrorist acts, the organisation collected extremist Islamic doctrinal and operational material and circulated it among members;

(5) money was collected from the members to fund the organisation's activities and some members undertook illegal activities, including illicit car re-birthing and credit card fraud, in attempts to raise additional funds for the organisation;

(6) the organisation spent money from the fund on group activities and other outlays as approved by Benbrika; and

(7) members also undertook team building/bonding activities, including trips away to training days and camps, sometimes with other terrorist organisations.

7 The Crown relied to a large degree on 481 conversations which were covertly, but lawfully, recorded by use of telephone intercepts (TI)[4] and listening devices (LD).[5] At the outset of the trial, the jury were provided with a table listing the date and time of each conversation, numbered chronologically from 1 to 482, with the names of the speakers involved.[6] As far as practicable, the recordings were then played to the jury in chronological order.

8 The sound quality of the TI and LD recordings was relatively good. The majority of the conversations were conducted in English, albeit often interspersed with some Arabic, while a small number of conversations were conducted wholly or substantially in Arabic. Where words in the transcripts were translated from Arabic to English, they appeared in the transcripts in bold text. No significant objection was made as to the accuracy of the transcripts, although, in a small number of instances, the Crown and the accused disagreed on the words that could be heard.[7] In those cases, the two different interpretations were brought to the attention of the jury as the recordings were played to them and the written transcripts made note of the two competing interpretations.[8] Each juror was also provided with a full set of the transcripts of the TI and LD conversations for the duration of the trial. The jury were instructed, however, that (in relation to conversations in English) the transcripts were merely an aid and that the evidence consisted of the actual recordings.

9 The Crown also tendered a large quantity of extremist, jihadi literature and violent videos, seized during police investigations of the organisation.[9] It also tendered TI and LD evidence which supported its contention that Benbrika used the seized material in the course of teaching members. Much of the material was an apologia for the pursuit of violent jihad on religious grounds. The Crown case was that Benbrika used the material to energise, motivate and simultaneously desensitise members of the group.

10 In addition, there was evidence that many of the accused were found in possession of written documents about violent jihad and the permissibility, on religious grounds, of martyrdom operations. Much of that material had been obtained from the internet. Further to this, there was TI and LD evidence of the discussions among the accused regarding those documents. The Crown contended that a number of the documents had been circulated within the membership.

11 Further TI and LD evidence was adduced to prove the content of discussions concerning material of interest stored, and viewed, on a group laptop computer (apparently kept by Joud). The material on the laptop included such things as beheading videos and footage of acts of violence carried out in Iraq and other areas of conflict. This evidence was said to demonstrate that members typically gathered around the laptop at various members' homes to view and discuss the material. The Crown also relied on the fact that many such videos were found in the possession of a number of the accused, and that their viewings of the material were often accompanied by expressions of delight upon seeing kuffar killed at the hands of the Muslim brothers.

12 Material found on computers and compact discs ('CDs') seized from several of the accuseds' premises included bomb-making manuals, combat literature and guides for those seeking to carry out acts of terrorism. Significant relevant titles found were: 'Mansura' (including 'The Mujahid's Handbook'), 'The Terrorist's Handbook', 'The White Resistance Manual' and 'The Vortex Cookbook'. There were also recordings of speeches by Osama bin Laden and other prominent jihadists.

13 As well as the TI and LD evidence, the Crown called viva voce evidence from police and civilian witnesses, surveillance evidence, evidence from one undercover police operative ('SIO 39') and expert evidence.

14 The Crown contended that, taken as a whole, the evidence - in particular, the TI and LD evidence and items found in the possession of members - established beyond reasonable doubt the existence of the organisation, its objectives, and the fact that each of the accused was a member (count 1). In addition, the evidence was said to prove that:

• Benbrika was a director of the organisation (count 2);
• Joud, Ahmed Raad and Sayadi had each intentionally provided resources to a terrorist organisation (counts 3, 4 and 5);
• Joud, Ahmed Raad and Ezzit Raad had each attempted to make funds available to a terrorist organisation (count 6);
• Joud had possessed things in connection with preparation for a terrorist act (counts 7 and 8); and
• Benbrika had likewise possessed things in connection with preparation for a terrorist act (count 12).

15 More precisely, it was said, the evidence established that Benbrika was the amir or leader of the organisation, and that he was supported in that role by a 'consultative committee' comprised of Joud, Sayadi and Ahmed Raad. Joud was identified as Benbrika's right-hand man, and Sayadi as having a role concerned with security. Ahmed Raad was identified as the treasurer. Membership of the organisation was exclusively male, and exclusively Muslim.

16 The Crown alleged that, as part of Benbrika's instruction of members in violent jihad, he taught them that death in pursuit of 'Allah's cause' was desirable, and that death in pursuit of violent jihad resulted in martyrdom and thus entry into paradise.

17 The TI and LD evidence was said to show that the organisation equipped members with the knowledge, motivation and confidence to carry out terrorist acts, or to assist others to do so. In particular, it recorded Benbrika telling members that Australia's involvement in the conflicts in Iraq and Afghanistan meant that Australia was a 'land at war', and thus that members were obliged to pursue violent jihad in Australia, and against Australian interests overseas, as part of a worldwide violent struggle against those perceived to be enemies of Islam. Benbrika cited terrorist acts committed by mujahideen around the world, including the bombings in New York and Washington, Bali, Madrid, Jakarta, London and Iraq, as exemplars to be admired and emulated.

18 According to the Crown case, it was apparent that the extremist motivational literature and videos had been used to energise, desensitise and otherwise motivate members of the organisation to commit terrorist acts, and that 'How To' guides and field craft manuals, including 'The Mujahid's Handbook', 'Car Bomb Recognition Guide', 'The Terrorist's Handbook' and 'The White Resistance Manual', had been used to instruct members on how to kill and maim with optimum effect and so cause 'maximum damage'. Joud was found in possession of the 'Manuals CD' which contained bomb-making instructions (count 7). Both Joud and Benbrika were found in possession of copies of the 'Mansura CD' (counts 8 and 12).

19 Other evidence was relied on as establishing that the organisation collected money from its members by way of zakat (a form of religious tax) to be added to a fund referred to as a sandooq (literally, a box).[10] The evidence was said to demonstrate that the money was intended to finance organisation activities approved by Benbrika. These activities included the commission of terrorist acts involving the use of firearms and chemical explosives. There was evidence to show that some members engaged in criminal activities (theft and fraud) in attempts to raise funds for the organisation (count 6), pursuant to Benbrika's pronouncement that it was legitimate under Islamic law to seize the wealth, and shed the blood, of the kuffar.[11]

20 Further important facts said to be established by the TI, LD and other evidence were that members had given the bayat - in effect, a pledge - to Benbrika to obey his directions.[12] The recorded conversations were also said to demonstrate that members undertook team building, bonding and training activities. Some of the applicants, and others, attended camps or went to locations where the activities of the organisation could more easily be conducted without being observed by the authorities. It was said that secrecy was maintained in order to ensure that the objectives of the organisation could be fulfilled. The evidence was that members treated each other as trusted brothers, and regarded outsiders and newcomers with suspicion.

21 Members were conscious of, and concerned about, police and other governmental agencies' interest in the organisation. They were aware that, because of the nature of their activities, there would be consequences if they were caught. The recordings showed that Benbrika counselled members to be patient during the period of government surveillance. Members were warned to exercise caution in the use of telephones (many of which were registered in false names). They were alert to surveillance, and aware of the need to hide items in which they assessed the authorities would be interested.[13] In an effort to overcome surveillance of their telephone conversations, they sometimes used code words to disguise the nature of

their activities.[14] Some members expressed violent intentions towards those suspected of informing on them. In the course of a large number of the recorded conversations, members of the organisation used the expressions 'do something', 'doing something' or words to similar effect to describe committing the type of terrorist act which they contemplated would advance the objectives of the organisation.

22 The defence cases at trial were more confined. None of the applicants gave evidence.

23 Benbrika's defence was that the TI and LD evidence was not to be interpreted literally, in the fashion suggested by the Crown, but rather against the background that he was from a male culture and was intoxicated with self-importance and fantasy. It was said that his frightening utterances were not sufficient reason to infer offences of the kind alleged. Finally, it was said that, given that no terrorist act was ever committed, the Crown had failed to prove intent.

24 Joud's case was that he was committed to the Islamic faith, but not to violent jihad in the sense alleged by the Crown. His counsel claimed that the evidence showed that, in any event, he had moved away from the group later in the period covered by the indictment. It was submitted that the evidence did not sustain the conclusion that he took the bayat. It was further submitted that the Crown had failed to prove the existence of an organisation of sufficient structure to constitute a terrorist organisation within the meaning of the Code. Moreover, although he may have had the intention of being associated with the group, it was said that he did not know it to be a terrorist organisation, and had no intention of joining any such body.

25 Joud contended, in respect of count 3, that it was not possible, as a matter of law, to provide resources to an organisation from within that body.[15] It was said that there was no evidence of any terrorist act having been committed and no evidence of any planning for the commission of any such act. It was argued that the evidence as to attempting to make funds available to a terrorist organisation went no further than establishing that Joud had been involved in car theft but without the objective of funding a terrorist organisation. Finally, as to counts 7 and 8, it was said that the Crown had failed to show that the items found in his possession were relevantly connected with preparation for a terrorist act, or if they were, that he was aware of that fact.

26 Sayadi's defence was that, taken in context, neither the TI and LD evidence, nor the evidence of training and trips, supported the case against him. He pointed to the fact that he was not present at a number of the conversations relied on by the Crown to establish the existence of the organisation. He also argued that, no matter what items had been found in his possession, there was no evidence of any plan to actually do anything, and no explosives. There was only jihadi literature and propaganda, which was not sufficient from which to infer the existence of a terrorist organisation, or his membership of such a body.

27 Merhi's defence was that he stood out from among the other accused in that, so far from being committed to violent jihad, the evidence showed that he was committed to da'wa, a form of Islamic proselytising that does not involve violence or incitement to violence. His case was that he had never signed up for terrorism, and was not a member of a terrorist organisation. He did not take part in any of the training trips away. While he may have been heard saying 'stupid things' on some of the recordings, his comments did not amount to evidence of his membership of a terrorist organisation. The evidence showed that he questioned Benbrika and did not accept everything that he was told. He was not found in possession of anything remotely connected with terrorism, and, in any event, the evidence showed that, with the passage of time, he drew away from the group and adopted a moderate non-violent stance which he encouraged others to accept.

28 Ahmed Raad's defence was also that the material relied upon by the Crown should not be interpreted as the Crown contended it should be. He too argued that the evidence did not establish that he was a member of a terrorist organisation, still less a member of its consultative committee. He contended that his having been the keeper of the sandooq did not equate to his being the treasurer of a terrorist organisation. Properly interpreted, the evidence showed that the sandooq was used for outlays unrelated to terrorism. While the so-called common library might be regarded as containing extremist material, there was evidence that many young Muslim men were sufficiently interested in material of that kind as to download it and view it without subscribing to terrorism. Moreover, there was no evidence that he had read much of the violent jihad material at all.

29 Ezzit Raad's defence was that the evidence showed him to have been involved in car stealing but no more. He featured in only 23 of the 482 recorded conversations. His case was that he was a young man, frustrated and powerless in a hostile environment, but not a member of a terrorist organisation. He was not involved in credit card fraud, or in obtaining mobile phones in false names, or in fraudulently obtaining airline tickets. His fingerprints were found on only one of the numerous exhibits tendered at the trial. In addition, there was no evidence that he had taken the bayat. Accordingly, he argued that, upon the whole of the evidence, the Crown had not proved its case against him.

30 Haddara's defence was that the Crown had not proved that there was an organisation, still less that it was a terrorist organisation. He argued that there was no evidence that he took the bayat. He claimed that the conversations upon which the Crown relied should not be interpreted as the Crown contended. In many cases, although he was present during conversations on which the Crown relied, his silence should not be construed as agreement with what was said during the conversations.

31 There are a large number of grounds of appeal, albeit that many are common to some or all of the applicants. We propose to deal with them essentially in the order in which they were argued before us. The numbering attributed to the grounds is our own. Much of the oral argument was taken up with what we have designated as grounds 1 and 2. These were common to all applicants, as were most of the grounds between 3 and 12, and ground 25. The grounds designated 13 to 24 were advanced by specific applicants, and have been dealt with accordingly.

32 Each of the applicants was convicted of an offence or offences under Division 102. Division 102 of the Code is headed 'Terrorist organisations'. It contains a series of provisions creating offences, a key element of which is proof that there exists a 'terrorist organisation'. For example, s 102.3 makes membership of a terrorist organisation an offence. It provides that:

(1) A person commits an offence if:

(a) the person intentionally is a member of an organisation; and

(b) the organisation is a terrorist organisation; and

(c) the person knows the organisation is a terrorist organisation.

Subsection (2) provides that subsection (1) does not apply if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after learning that the organisation was a terrorist organisation.

33 The Code defines 'organisation' in s 100.1 as follows:

organisation means a body corporate or an unincorporated body, whether or not the body:

(a) is based outside Australia; or

(b) consists of persons who are not Australian citizens; or

(c) is part of a larger organisation.

34 Section 102.1 provides that a 'terrorist organisation' means:

(a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs); or

(b) an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4)).

35 The definitions of 'organisation' in s 100.1, and 'terrorist organisation' in s 102.1, necessitate reference to the definition of 'terrorist act' in s 100.1(1). That definition is as follows:

terrorist act means an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (3); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii) intimidating the public or a section of the public.

36 Under s 100.1(2) an action can constitute a 'terrorist act' if it:

(a) causes serious harm that is physical harm to a person; or

(b) causes serious damage to property; or

(c) causes a person's death; or

(d) endangers a person's life, other than the life of the person taking the action; or

(e) creates a serious risk to the health or safety of the public or a section of the public; or

(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i) an information system; or

(ii) a telecommunications system; or

(iii) a financial system; or

(iv) a system used for the delivery of essential government services; or

(v) a system used for, or by, an essential public utility; or

(vi) a system used for, or by, a transport system.

37 Under s 100.1(3), however, an action will not constitute a 'terrorist act' if it:

(a) is advocacy, protest, dissent or industrial action; and

(b) is not intended:

(i) to cause serious harm that is physical harm to a person; or

(ii) to cause a person's death; or

(iii) to endanger the life of a person, other than the person taking the action; or

(iv) to create a serious risk to the health or safety of the public or a section of the public.

38 Each applicant, apart from Sayadi, took exception at trial to the trial judge's directions to the jury regarding the meaning of the term 'organisation'. A number of separate arguments were advanced, and replicated before this Court. Before dealing with those arguments, it should be noted that much of the debate surrounding the term 'organisation' at trial centred upon an issue that is no longer of any relevance.

39 The parties were at odds below as to whether the term 'organisation', as used in the Code, should be understood in a special sense, or whether it carried its ordinary meaning. If that term was used in a legal or technical sense, the trial judge was required to give a specific direction as to its meaning. If, however, the term was used in its ordinary sense, no such direction was required. Basically, the defence argued for a specific direction, while the Crown submitted that the matter should be left to the jury to determine for themselves.

40 Ultimately, his Honour ruled in favour of the defence on that issue.[16] It followed that the jury had to be given a binding direction as to its meaning. His Honour then directed the jury as follows:

In approaching this issue, you must put out of your mind anything you know about what an organisation is outside or what it might be in some other circumstance. We've got to apply the law as it applies to this Act, and whilst it's not unusual, it's somewhat complex, and I'm going to have to explain it to you carefully.

The law defines an organisation as a body corporate or an unincorporated body. A body corporate is a body which is registered with [the Companies] Office or something and has an independent existence apart from its members. It's a legal entity. You can completely forget that. No one is suggesting here that any body corporate is involved. The second part of the definition is an unincorporated body. This is a legal question, and the directions I give you about it, you must follow. As I say, it is exclusive of any other idea or concept about organisation you might have had or got from anywhere.

An unincorporated body is a body which, of itself, has no separate legal existence apart from its members. In other words, it consists of people, a group or collection of people who come together for a particular shared aim or aims, it might have one aim, it might have many, or purposes. It may have characteristics which suggest its existence; it may have some sort of structure; there may be a leader or a director; there may be other people who hold or assume other offices in the organisation. Here the Crown alleges that Benbrika, Joud, Sayadi and Ahmed Raad held leadership positions in the terrorist organisation which it says existed. You will have to consider these allegations in due course when we get to the evidence.

There may be a common fund for the purposes of the body. Here the Crown alleges that there is, and that it's called the sandooq, an Arabic word which merely means box which is commonly applied to a communal fund. Again, you will have to consider this aspect when we get to the issues that raise it.

The body may have some method of including or excluding persons from membership. There may or may not be some degree of formality to its meetings, whether as to time and place or how they are conducted. It may or may not have a name, either publicly known or used internally by its members. All or some of these characteristics may be present but whether some of them are or not, to constitute a body, there must be more than a fluctuating or amorphous group of individuals. There must be some measure at least of stability of membership. Even if some members may have joined and some may have left during the period of its existence.

You might be able to be assisted by my pointing it out to you and you realizing it because you know it already, that a body is different, say, to a crowd. You could say a crowd gathered outside the pub where there was a fight, and half an hour later, you could say the crowd was still there. It would be unlikely that it would be the same crowd or the same individuals. You wouldn't describe that as a body. That might be an amorphous group of individuals who have come together because they were interested in the police arresting someone causing a commotion and the commotion goes on a bit further and then people begin talking, some leave and some come back in half an hour's time. To say the crowd is still there as a matter of use of English is not unreasonable and you might well say it, but if you think about it, it's highly unlikely it's composed of the same people who were there half an hour ago. It might be, of course, they all might have wanted to watch the end of it. But you wouldn't describe that as a body. It's got to have something more to it than that. It's got to have some sort of form.

The sorts of criteria that I have set out there are the sorts of things that you look at when you are looking at the evidence, and if you see them, you say, "That is another indicator", or, "It's not an indicator". It's a matter ultimately for you in accordance with those legal directions that I have given you. That is the term "organisation".[17]

In addition to that oral direction, his Honour provided the jury with a written screed as to the meaning of the term 'organisation', which was largely in the same terms.

41 It was submitted on behalf of the applicants that, although the trial judge had ruled in favour of the defence that the term 'organisation' was used in a legal or technical sense, and therefore had to be defined for the jury, no such binding definition had in fact been given. It was submitted that his Honour had, in his charge, left the meaning of that term open, so that the jury might interpret it according to their own understanding. This was because of his repeated use of the term 'may' when he directed the jury as to how they might resolve the question whether an 'organisation' existed.

42 It was further submitted that his Honour's charge was defective because it stipulated only one indispensable criterion for the existence of an 'organisation', namely, the requirement that there be 'shared aims or purposes' among the individuals concerned. All of the other indicia to which his Honour referred were said to have been treated as optional, the jury having been told only that they 'could' or 'may' be present. This latter submission cannot be accepted. It is clear from his Honour's charge that he also indicated that 'stability of membership' was an indispensable element in any concept of an 'organisation'.

43 Counsel submitted that his Honour's expression, 'shared aims or purposes', itself required further explanation. It was submitted that the jury had to be told, in clear terms, which of any 'shared aims or purposes' could suffice to render the group an 'organisation', and which of those aims or purposes could not do so.

44 In his written submissions, counsel for Ahmed Raad argued that, in addition to the requirement that there be 'shared aims or purposes' and 'some measure of stability of membership', an 'organisation' could not exist without five further characteristics. These were:

• a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method for the identification of its members (Kibby v Registrar of Titles[18]);
• some form of internal structure which enables it to take and implement decisions as a collective (Cometa United Corporation and Tradeswood Shipping Company v Canterbury Regional Council[19]);
• a similar general structure to a company, in the sense that it will have a decision-making process, people who have governance responsibilities and such like (a pseudo-corporate structure). (Cometa[20]);
• a 'sufficient' structure - 'that one can discern whether a person is or is not a member of it'; and
• the ability to include and exclude members.

45 Counsel further submitted that, in order to find that an 'organisation' existed, there had to be some method by which the actions of individuals could be attributed to the body said to constitute the 'organisation'. In order to achieve this attribution, it was essential that there be an identifiable 'structure'. Otherwise, the actions of any particular individual might simply be personal to that individual, rather than the actions of the 'organisation'.

46 According to this submission, the fact that some of the alleged members of the group were deliberately kept ignorant of the activities of the others showed that no 'organisation', in the relevant sense, ever existed. Moreover, it was submitted, the jury should have been directed that they could not use the acts and declarations of any particular accused as evidence of preparation for a terrorist act, unless those acts and declarations had been expressly, or impliedly, authorised by other members of the group. It was said that his Honour's failure to direct the jury in those terms meant that the charge was flawed.[21]

47 In the course of oral argument before this Court, senior counsel for Benbrika sought to develop this last point into a separate attack upon his Honour's charge. He did so notwithstanding that the point was not the subject of any ground of appeal. He submitted, however, that he had addressed the matter, albeit somewhat opaquely, in his written submissions.

48 Put simply, the argument advanced before us was that the jury should have been told that, when determining whether the Crown had established the existence of an 'organisation', they had to do so separately in relation to each accused. In doing so, they could only have regard to the evidence specifically admissible against the particular accused whose case they were, at that moment, considering. In particular, they should have been told that they could not use the acts and declarations of any of the other accused to assist in resolving that issue.

49 We deal with the last argument first. The argument bears no resemblance to the way in which this matter was approached at trial. It was common ground before the trial judge that whether or not an 'organisation' existed was a matter of inference, to be determined on the evidence as a whole. It was accepted by all parties that the jury should be invited to resolve that question in accordance with the various indicia identified by his Honour in his charge. It was further accepted by all parties that it would only be after they had determined that an 'organisation' existed that the jury would go on to consider whether or not any individual accused had ever been a 'member' of that 'organisation'. In determining the question of membership, the jury would only have regard to the evidence admissible against the particular accused whose case they were then considering.

50 It is of particular significance that this matter was only raised before this Court in oral argument, and found no mention in the copious written submissions filed in advance of the hearing. As we have said, not only was the point now sought to be made not raised below, but the trial had proceeded on an agreed basis which was the exact reverse of what is now contended. As this Court has said repeatedly in recent times, it is not permissible to raise points on appeal which are premised on a different trial having been conducted from the trial which actually took place.[22]

51 In any event, this new point is without substance. Proof that an 'organisation' existed did not turn upon any evidence that would only have been admissible against a particular accused. There were, for example, no admissions relied upon to establish this element. Rather, as we have said, the evidence upon which the Crown relied to establish that such an 'organisation' existed was entirely circumstantial. The jury were invited to infer from what the individual accused and others said and did, that a body of that kind had been formed.

52 The Crown did not rely upon the acts and declarations of others as an exception to the hearsay rule in order to prove the existence of the 'organisation'. Rather, and to the extent that those acts and declarations were relevant, they were received as original evidence. That is, the Crown relied on the fact that things were said and done as giving rise to the inference for which the Crown contended. The Crown case, in this respect, was based upon similar principles to those invoked when it is sought, in a case of preconcert, to prove the existence of that preconcert. It is only after the preconcert has been shown inferentially to exist that there is scope for the so-called 'co-conspirators' rule' to operate. It is at that stage, but only then, that the acts and declarations of those said to have acted in preconcert with each other, in furtherance of the agreement, are admissible against each other.[23]

53 The point is illustrated by reference to Tripodi v The Queen.[24] In a joint judgment, Dixon CJ, Fullagar and Windeyer JJ said:

When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case.[25]

It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts. It is customary at criminal trials simply to treat the presence or absence of the prisoner as decisive of the admissibility of things said and it is a pity to rob that empirical but practical and convenient test of any of its usefulness. But often enough in an ordinary case where there is no confederation or preconcert, directions, instructions and the like although spoken in the absence of the prisoner may, according to the circumstances of the case, be admissible as res gestae or relevant facts. It is easy to understand therefore that preconcert confederacy or combination may make such directions and the like admissible when they are given by one of several acting in preconcert with the prisoner and are given in furtherance of the common design. In the present case the things said and done when the prisoner was not present or within earshot are for the most part of this character and are admissible as part of what was done in furtherance of the common criminal purpose.[26]

55 The point is further illustrated by reference to the following passage in the judgment of Young CJ in R v Minuzzo & Williams.[27] That was a case of conspiracy, however, what was said has general application to preconcert:

An accused person is entitled to have his case considered upon the evidence admissible against him. In a conspiracy case such as the present there are three classes of evidence to be considered, namely (a) evidence of the acts and declarations of the accused whose case is being considered, (b) evidence of the acts and declarations of co-accused from which the conclusion that there was a combination might be drawn, and (c) acts and declarations of co-conspirators done or made in pursuance of the combination. Most evidence which falls within category (b) will also fall within category (c). Those two categories are not intended to be either co-extensive or mutually exclusive.

Evidence in category (b) may be used in order to establish the conspiracy: see R v Associated Northern Collieries and Tripodi v R. Evidence in category (c), which is sometimes described as evidence in furtherance of the conspiracy, may only be used against an accused whose case is being considered once there is some evidence that that accused is connected with the conspiracy. But it is not necessary that the jury should be satisfied of the guilt of the accused before they can use evidence of category (c). Satisfaction of guilt of course requires satisfaction beyond reasonable doubt. But evidence falling into category (c) can be used against an accused once prima facie proof of the accused's connection with the conspiracy has been given... The prima facie evidence which is here referred to is evidence described as directly admissible against the accused connecting him with the conspiracy alleged. By evidence directly admissible against the accused is meant in this context evidence other than the acts and declarations of the alleged co-conspirators not in the presence of the accused. Whether there is sufficient evidence directly admissible against an accused connecting him with the conspiracy to make evidence in category (c) available to be used against him is a question for the jury.[28]

56 If the existence of a conspiracy can be established, inferentially, by having regard to what was said and done by the alleged co-conspirators, and others not said to be part of the conspiracy, the same must be true when considering whether a combination such as that alleged in this case has been proved, namely, an 'organisation'.

57 In Ahern v The Queen,[29] the High Court made the point very clear:

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. The words "reasonable evidence" have provided a standard which has been applied without difficulty in this country for some years, at least in cases where preconcert has been the basis upon which evidence has been led in cases other than conspiracy, and there is no reason to suppose that if it has provided an appropriate test in those cases, it will not do so where conspiracy is charged.[30]

58 The point, quite simply, is that there can be 'reasonable evidence' of a combination or conspiracy which is purely circumstantial, and does not depend upon treating the statements made by those said to be participants as evidence of the truth of that which was asserted. The statements are received as original evidence, and are relevant because inferences can properly be drawn from what the various participants were saying.

59 As we have said, it was common ground at the trial that, when it came to determining whether a particular accused was a member of the 'organisation', the position altered. At that stage, the jury were told in the clearest of terms that they could only have regard to the evidence specifically admissible against the accused whose case they were then considering. That was the basis upon which the trial proceeded, with the unanimous consent and endorsement of all parties. We would take a great deal of persuading, having regard to that fact, to conclude that his Honour's direction was erroneous or had led to a miscarriage of justice.

60 This was not the only submission advanced before this Court that bore little resemblance to the way in which the trial was conducted. It was submitted, in oral argument, that the trial judge ought to have directed the jury that, before they could find that an 'organisation' had come into existence, they first had to identify who were its 'members'. Logically, so it was said, that could only be done by having regard to the evidence that was separately admissible against each accused. Accordingly, it was submitted, there could be no finding of a general nature that an 'organisation' existed, but only a series of individual findings, each relating to a particular accused.

61 We are not persuaded by that submission. The trial was conducted throughout on the basis that count 1, alleging membership of a terrorist organisation, gave rise to two separate issues. The first was whether the Crown could prove the existence of an 'organisation'. The second was whether it could establish against each individual accused, on the basis of the evidence separately admissible against that particular accused, that he was a 'member' of that 'organisation'.

62 In our view, there was nothing untoward in adopting that approach. It was perfectly sensible to invite the jury to consider first whether the Crown had established the existence of an 'organisation', and only then to consider whether it had proved against each individual accused that he was relevantly a 'member'. Indeed, it would be difficult to approach the matter in any other way. It is hard to imagine how a jury could determine whether a particular accused was a 'member' of a body that they had not yet determined existed.

63 It is obvious, of course, that there cannot be an 'organisation' unless it has 'members'. It does not follow that the question of membership can be resolved in the abstract, without it having first been determined that there is in existence a body to which such membership can attach.

64 That takes us to the central point of the first ground. The issue is whether his Honour misdirected the jury as to the meaning of the term 'organisation', and thereby enabled them to be satisfied of this element without adequate proof of its existence. For reasons which follow, we are satisfied that no such error has been shown.

65 The starting point in approaching all of the issues concerning the statutory language in Part 5.3 of the Code, and in assessing the adequacy of the judge's directions on particular statutory terms, must be to recognise the somewhat unusual nature of the terrorism provisions. In Lodhi v The Queen,[31] Spigelman CJ (with whom McLellan CJ at CL and Sully J agreed) said:

Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, eg well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy.[32]

66 Lodhi No 1[33] was concerned with offences under Division 101 of the Code (Terrorism), and not Division 102 (Terrorist organisations). Subsequently, the New South Wales Court of Criminal Appeal, in Ul-Haque v The Queen,[34] concluded that the principles set out in Lodhi No 1[35] applied with equal force to the construction of the offences contained in Division 102.

67 As noted earlier, the trial judge identified various indicia which he invited the jury to consider when determining whether the Crown had established that there existed an 'organisation'. In directing the jury in that way, his Honour drew heavily upon the analysis of the term 'association' by Mandie J in Kibby v Registrar of Titles.[36] That case concerned a parcel of land held by trustees, initially for a fluctuating group of individuals and later, so it was said, for an unincorporated association. That body claimed to have had a sufficient degree of organisation and continuity to indicate that it had been in existence at a particular date. Mandie J had to determine whether there was, as at the date, merely an amorphous or fluctuating group of individuals, or a combination sufficient to enable it to be described as an 'association'.

68 As Mandie J observed, an unincorporated association (sometimes called an unincorporated body) has no legal existence separate or distinct from its members.[37] It is 'an artificial and anomalous conception' which, 'though not a separate entity in law, is yet for many purposes regarded as a continuing entity' and, however inaccurately, 'as something other than an aggregate of its members'.[38] Such an association is formed by the mutual understanding of its members. It consists of nothing more than the aggregate of its members at a particular time. In effect, an unincorporated body is a voluntary combination of persons with some object or purpose in common.[39] If the body has assets, they belong, subject to the rules, to the members for the time being.[40]

69 The main characteristic of an unincorporated association is, of course, that it does not enjoy legal personality.[41] It is simply a voluntary association of persons who share common aims or interests. As a result, an unincorporated association cannot enter into a contract, or acquire, hold, or dispose of property in its own name.[42]

70 Common examples of unincorporated not-for-profit organisations are: social clubs, sporting clubs, religious groups, charitable organisations, educational associations, and scientific societies. Organisations of this kind are generally managed by a committee chosen from among the members. As an unincorporated association has no legal personality, it cannot be held liable in its own name. Such liability is imposed on the members of the committee personally, as principals and not as agents.[43] Although the members of the committee act on behalf of the association, they may not be entitled to indemnity for any payments they make to discharge its debts, or in respect of liability in tort. In that sense, the liability of committee members may be contrasted with that of the directors of a company.

71 Unincorporated associations determine the rules for their own administration. Not all such rules are contractual in nature.[44]

72 In Kibby,[45] it was noted that the English approach to determining whether an unincorporated association exists might differ somewhat from that taken in this country. Reference was made to Conservative & Unionist Central Office v Burrell,[46] a case involving taxation legislation. There, Vinelott J dealt with a submission that there were six characteristics which were either essential, or normal, indicia of an unincorporated association. These were:

(i) there must be members of the association;

(ii) there must be a contract binding the members inter se;

(iii) there will normally be some constitutional arrangement for meetings of members and for the appointment of committees and officers;

(iv) a member will normally be free to join or leave the association at will;

(v) the association will normally continue in existence independently of any change that may occur in the composition of the association;

(vi) there must as a matter of history have been a moment in time when a number of persons combined or banded together to form the association.

His Lordship considered (i), (ii) and (vi) to be essential characteristics of such a body, but not (iii), (iv) and (v).[47]

73 In Kibby,[48] Mandie J analysed a series of judicial pronouncements as to the meaning of the term 'unincorporated association'. His Honour also referred to a number of dictionary definitions of that term. He observed:

In the light of the judicial statements to which I have referred and the ordinary meaning of the words contained in the said definition, I consider that the essence of an "association" may be described as some form of combination of persons (with a common interest or purpose) with a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method for the identification of its members.

I do not think that a name or title, or the existence of a written constitution or rules governing the combination, or the existence of some form of contract between the members, is an essential characteristic, but clearly the existence of one or more of these would go a long way towards satisfying the need for some degree of organisation and continuity and for the satisfactory identification of members. Likewise, the existence of office-bearers, a committee and a bank account are relevant to a degree of organisation. The absence of all of these features makes it unlikely, but not impossible, that an association has been formed or is being carried on.[49]

74 The applicants do not challenge the applicability of the Kibby[50] indicia, but contend that the jury should have been told that the presence of all, or at least some, of these indicia was a necessary precondition to a finding that an 'organisation' had come into existence. His Honour's error, so it was said, lay in allowing the jury to think that they could make such a finding without being satisfied that each of the matters identified in Kibby[51] - or at least a specified minimum number of them - was present.

75 Our attention was drawn to a number of authorities said to bear upon this issue. In Cometa,[52] the New Zealand Court of Appeal delivered a helpful judgment on the point. Arnold J said:

Unincorporated bodies range from loosely to highly organised groupings. At one end of the spectrum are groups of people who have come together in an ad hoc way for a particular short-term purpose. Examples are residents who are opposing a development in their neighbourhood or parents of school children who want to take up a particular concern with the school. At the other end of the spectrum are bodies which are long-lived, have officers, governance arrangements and employees just as corporate entities do, and operate and present themselves to the public as established, independent organisations. Bodies of this latter type are distinct from (and more than) the individuals who make up their membership - as a practical matter, they have independent existence and act as independent entities ... This is presumably why s 29 of the Interpretation Act 1999 defines "person" to include an unincorporated body.[53]

First, an unincorporated group must be capable of being described as a "body" of persons to fall within the definition in s 2 of the RMA [Resource Management Act 1991]. Individuals whose common interests have brought them together for a temporary purpose without any formal organisation may not fit that description. This seems to follow from Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17; [2005] 2 NZLR 597. In that case this Court had said that an incorporated society whose registration had lapsed did not exist as a legal entity at the relevant time for the purposes of the RMA. Blanchard J said:

[127] That finding cannot be sustained. It overlooks the definition of "person" in s 2 of the Act:

person includes the Crown, a corporation sole, and also a body of persons, whether corporate or unincorporate: ... .

Northcote Mainstreet was undoubtedly an unincorporated body of persons, during the interregnum between the lapsing of its incorporation and its restoration to the register under the Incorporated Societies Act 1908. The Court of Appeal said in Edwards v Legal Services Agency [at [28]] that a number of group of persons:

"... must be regarded as a body if there is such regulation of their internal affairs that there can be said to be a structure by which they can be recognised as a collective entity - the unincorporated equivalent of a body corporate."

[128] Northcote Mainstreet continued to operate in accordance with its rules during the interregnum, for part of that time not appreciating that it had ceased to be registered. It acted throughout as a collective entity. There was not, and on the facts there could not be, any suggestion on the part of Discount Brands that through inactivity, the unincorporated body has "spontaneously" dissolved.

Tipping J said:

[170] In considering this issue I revert to the definition of person. It says that the word includes "a body of persons, whether corporate or unincorporated". A corporate body is a legal entity in its own right distinct from its members. An unincorporate body of persons is not. An unincorporate body is rather like a partnership. It is recognised as having a separate existence, but in law it is no more than the aggregation of the individuals who are its members.

[171] Whether one views Northcote Mainstreet as a corporate or unincorporate body is not the immediate point. My point is that by making unincorporate bodies persons for [RMA] purposes, Parliament seems to have been looking more to substance than to legal existence or form. The concept of person is clearly designed to go beyond legal persons. It is necessary to be able to identify a body, but not a body which is legally recognised in its own right. The statutory policy evident from this expansive approach to persons suggests that a body of persons, as a body, ought to be able to rely on attributes pertaining to its individual members. That is an easier concept when the body is not a separate legal person than when it is. But in the present context the proposition must apply in both instances. The answer cannot, in this field, depend on issues akin to whether a corporate veil should be lifted.

These passages suggest that, in order to meet the definition, the unincorporated group must have some form of internal structure which enables it to take and implement decisions as a collective. If the group exists as a "collective entity" it can properly be viewed as a "body" of persons.

Second, and following on from the point just made, a group constituting a "body of persons" is likely to have a similar general structure to a company, in the sense that it will have a decision-making process, people who have governance responsibilities and such like (a pseudo-corporate structure). Consequently, as is said in Ormerod at 243:

When an unincorporated association is prosecuted, presumably the court must proceed by analogy to the law relating to corporations. Such associations have officials corresponding to the controlling officers of corporations and it is inconceivable that the association is liable for the act of any one of its members who has no part in the general management of its affairs.

In other words, given that the unincorporated group must be capable of being described as a "body of persons" in order to be subject to the RMA, the attribution of actions which breach the RMA to the body as opposed simply to particular individuals is feasible. Practical difficulties in relation to matters such as service and enforcement can be addressed by means of the pseudo-corporate structure that an organisation meeting the definition of "body of persons" will have. We consider that this is the appropriate approach in the absence of specific provisions dealing with unincorporated bodies in respect of offences under the RMA. [54]

77 In the United States, there has been a good deal of learning on the meaning of terms like 'organisation'. As would be expected, however, context is everything. Recently, in Boyle v United States,[55] the Supreme Court considered the meaning of the term 'enterprise' under the Racketeer Influenced and Corrupt Organizations Act, commonly know as RICO, which was defined to include any 'group of individuals associated in fact'. Alito J delivered the opinion of the Court, which affirmed that, in order to establish the existence of an 'enterprise', the government had to prove that there was an 'ongoing organisation' with some sort of framework, formal or informal, for carrying out its objectives. The government also had to prove that various members and associates of the association functioned as a continuing unit to achieve a common purpose.

78 In that case, the trial judge had told the jury, over the petitioner's objection, that they could 'find an enterprise where an association of individuals, without structural hierarchy, forms solely for the purpose of carrying out a pattern of racketeering acts'. The trial judge had also said that 'common sense suggests that the existence of an association-in-fact is oftentimes more readily proven by what it does, rather than by abstract analysis of its structure'.

79 In a submission that bears more than a passing similarity to that advanced before this Court, the petitioner had sought a direction that the government had to prove more than this, namely, that the enterprise had 'an ongoing organisation, a core membership that functioned as a continuing unit, and an ascertainable structural hierarchy distinct from the charged predicate acts'. The trial judge had declined to give that direction. The Supreme Court rejected the petitioner's submission and affirmed the conviction. It thereby upheld the broader and more flexible meaning given to the term 'enterprise' in that case.

80 Returning to the contention before us that his Honour misdirected the jury as to the term 'organisation', the first point to note is that legal terms can be explained in various ways. This can be done prescriptively, using the language of definition that may be highly specific, exhaustive, and self-contained. It can also be done more broadly by using the language of description, with various indicia or signposts provided to assist in understanding the meaning of the term in question.

81 The use of the term 'unincorporated body', in contradistinction to the term 'body corporate', in the definition of 'organisation' under s 100.1 of the Code invites attention to the distinction between companies and unincorporated associations so far as the criminal law is concerned. In that regard, at common law, an unincorporated body could not, and still cannot, be the subject of the criminal law.[56] That is not the position in relation to a body corporate, which can be directly liable for the commission of a criminal offence actually perpetrated by a 'directing mind and will'.[57] Rules of attribution have been developed in order to determine whether the conduct, knowledge, or mental state of an individual employee or agent should be attributed to a corporation.[58] There are, of course, many offences that, by their very nature, cannot be committed by companies, for example, rape.[59]

82 Although unincorporated bodies are not themselves formed under the Corporations Act 2001 (Cth), their existence is recognised within some of its provisions. Those sections of the Act which refer to a 'body' (as distinct from a 'body corporate') can have that effect. Section 9 of the Act defines 'body' as meaning a 'body corporate or an unincorporated body'. That is precisely the same language as appears in s 100.1 of the Code.

83 As we have said, the trial judge in the present case sought to assist the jury by providing them with indicia to be used to determine whether the existence of an 'organisation' had been established. As Cometa[60] makes plain, there is no 'bright line' which will enable one to say, in any case, that there are sufficient characteristics of an organisation present to conclude that one exists. Nor is there any set of necessary conditions the absence of one of which would render the term 'organisation' inapplicable.

84 In reality, there is a continuum along which, at a certain point, an amorphous group of individuals with shared aims and objects becomes an entity that can properly be described as an 'organisation'. It is a question of fact and degree. In our view, his Honour was correct to express the test as he did, rather than adopting a rigid and exhaustive definition. We reject the contention that the jury were left without sufficient guidance on this issue.

85 An example will illustrate this point. A judge trying a case of murder would normally direct the jury that an intent to cause really serious injury was sufficient to constitute the mental state required for that offence.[61] The rest would be up to the jury. The fact that the judge did not go further, and spell out exhaustively and with

precision the difference between 'really serious injury' and merely 'serious injury' does not mean that the jury were left inadequately instructed.[62]

86 The jury in the present case were by no means left 'at large' to determine whether the Crown had established the existence of an 'organisation'. They were given very considerable assistance in resolving that question. Whether or not such a body has come into existence must, as we have said, inevitably involve questions of fact and degree. There is no point at which it can be said, unequivocally and objectively, that a group of individuals with shared aims has transformed itself into an 'organisation'. Each case must be considered in the light of its own particular facts, and every case will require individual attention to be given to the relevant characteristics. The Kibby[63] indicia were signposts to be considered in what was, in the end, an evaluative exercise.

87 The fact that the term 'organisation' is a key element in what are called the 'Terrorist organisation' offences, within Division 102, does not mean that a trial judge who seeks to explain that term must do so by transposing for it a different word or set of words. Any attempt to provide an exhaustive definition of 'organisation' will, inevitably, run into difficulty.

88 The synonym for that term adopted by the Code, 'unincorporated body', is of course nothing more than a legal construct. It does not have the straightforward connection with any counterpart in the world of fact which most ordinary words have, and to which we normally appeal when we seek to define such words.[64] There is nothing in the 'real world' which 'corresponds' to this legal expression.[65]

89 For this reason, recourse to even the most widely accepted, and reputable, dictionary definitions can have its limitations. Insofar as the term 'organisation' is, in the context of the Code, used in a legal and technical sense, it by no means follows that the only appropriate method of elucidating the meaning of that term is to find a precise synonym. A reference to indicia which bear upon the existence of an 'organisation', such as was made in this case, is likely to be of greater assistance to a jury than a highly prescriptive definition that may be as opaque as the very term sought to be explained.

90 The Crown submitted that it was clear from the nature and purpose of the 'Terrorist organisation' provisions in the Code that a number of the Kibby[66] indicia could not possibly be relevant to the question which the jury had to decide. By their very nature, bodies of the kind which the legislature must have had in mind when enacting these provisions were likely to operate in a clandestine manner. It would be expected that they would function in secrecy, and with little formality. There would be no written constitution or set of rules, and there would almost certainly be nothing like a contractual relationship between the members.

91 The Crown disputed the applicants' contention that there could be no 'organisation' without some proof that what individual members did was 'authorised' by the group. That contention was said to conflate two separate issues, namely whether an 'organisation' had come into existence, and whether a particular accused was a 'member' of that 'organisation'. As a matter of ordinary common sense, a person could be a 'member' of an 'organisation' without knowing all that it did. That person could also be a 'member' without expressly or impliedly authorising others to act on his or her behalf.

92 The Crown submitted that the term 'organisation' had been deliberately chosen because it encompassed a broad view of the way in which terrorist groups might function. The submission relied upon a passage in the Explanatory Memorandum which, it was said, suggested that the term 'organisation' was not intended to be interpreted in a narrow or pedantic manner. The passage in question reads as follows:

The definition was included to defeat any argument that a group of persons is not an organisation because it does not have a particular formal attribute or structure.[67]

93 Finally, the Crown submitted that, even if the trial judge's charge as to the meaning of the term 'organisation' allowed too much latitude to the jury, that was inconsequential in the circumstances of this case. According to the Crown's submission, the evidence established that all of the Kibby[68] indicia were present, as follows:

1. there was a group or collection of individuals who came together for a particular shared aim or aims, predominant among which was what was termed 'violent jihad';

2. the group had a structure and, indeed, a fully-developed hierarchy;

3. Benbrika was the leader and there was, as well, a 'consultative committee';

5. the group had a method of including or excluding individuals from membership, namely, Benbrika's own authority;

6. members of the group met regularly, albeit informally. They communicated with each other frequently;

7. the group was referred to internally, by those said to be its members, as 'the jemaah';[69] and

8. finally, there was the requisite measure of stability of membership which differentiated the group from an amorphous collection of individuals.

94 Axiomatically, the context within which a particular word in a statute must be understood includes not just the surrounding words, or the surrounding provisions, or even the Act as a whole. It also includes the historical circumstances that existed at the time of its enactment, and which might be thought to explain why the provision was introduced.[70] Moreover, the Court is required by s 15AA of the Acts Interpretation Act 1901 (Cth) to adopt a purposive construction.

95 In our view, the trial judge's directions to the jury as to the meaning of the term 'organisation' were adequate to ensure that proper consideration could be given to that element of the various relevant offences. Contrary to the submissions on behalf of the applicants, it was not essential that the jury be satisfied that each and every one of the indicia identified by his Honour as potentially relevant to their task had been established.

96 If that view were incorrect, we would nevertheless conclude that there was ample evidence to support the existence of an 'organisation', in accordance with the principles enunciated by his Honour. As the Crown submitted, the jury were entitled to be satisfied that these indicia were present, to a greater or lesser degree, in this case.

97 Contrary to the applicants' submissions, his Honour's directions did not dilute the concept of 'organisation' so that it became effectively a 'dead letter'. Those directions made it clear that the jury had to distinguish between an amorphous or fluctuating group of individuals who might share a common interest or purpose, and a group with sufficient structure and continuity to enable it to be described as an 'organisation'.

98 For these reasons, the challenge to his Honour's directions as to the meaning of the term 'organisation' must fail.

99 As previously indicated, the term 'fostering' appears in the definition of 'terrorist organisation' in s 102.1(1) of the Code. The trial judge's direction to the jury regarding the meaning of 'fostering' must be understood in light of all that he also said about the cognate terms 'terrorist act' and 'terrorist organisation'.

100 During the trial, there was some debate as to how the term 'fostering' should be explained to the jury. The Crown submitted a draft direction in the following terms:

The organisation was fostering the doing of a terrorist act in that it was doing one or more of the following:

• Promoting the growth or development of the doing of a terrorist act.
• Encouraging persons to take practical steps towards the doing of a terrorist act.
• Furthering or advancing the prospects of a terrorist act being carried out.

Counsel for the accused objected to this threefold analysis. Essentially, they asked his Honour to confine the meaning of the term 'fostering' to 'encouraging'.

101 After hearing submissions from both sides, his Honour first said to the jury:

Fostering and preparing are ordinary English words which you will understand. You don't need any assistance from me. You might give them their ordinary English meanings.

His Honour then gave the minimalist direction sought by the defence. It was in the following terms:

Fostering can be synonymous with encouraging or something of that nature ...

His Honour also included within the written screed provided to the jury a statement to the same effect.

102 It is plain from what subsequently transpired that a member, or members, of the jury had some concerns about the meaning of the word 'fostering'. It was that word which gave rise to the use, by the jury, of a dictionary, a matter which we will deal with separately.[71]

103 Counsel for the applicants submitted, in this Court, that the term 'fostering', as used in the Code, ought not to have been given its ordinary English meaning. The ordinary English meaning was simply too broad. It would encompass conduct that the legislature could never have intended to fall within the scope of a 'terrorist organisation' offence. More particularly, it was submitted, 'fostering' in ordinary English usage might include, for example, merely being favourably disposed to 'the doing of a terrorist act'. It was submitted that a willingness to look favourably upon the commission of a terrorist act, which might fall within the term 'fostering', could not possibly be sufficient to constitute an offence of this order.

104 That submission was said to be supported by the definition of 'fostering' contained in the dictionary eventually discovered in the jury room. That definition, it should be noted, included at least one meaning which, it was said, equated 'fostering' with nothing more than a feeling of approbation towards terrorism. The definition in question was in these terms:

promote growth of; encourage or harbour (feeling); (of circumstances) be favourable to.

105 The jury would not have appreciated - so it was said - that the expression 'be favourable to' was here preceded by the limiting term '(of circumstances)', thereby signifying that it had nothing to do with a state of mind but rather concerned a set of objective facts. It was contended that, having read the definition contained in the dictionary, the jury might simply have asked themselves whether the members of the alleged 'organisation' were 'favourable to' (ie favourably disposed towards) the 'doing of a terrorist act'. Having answered that question affirmatively, they might - wrongly - have convicted the accused.

106 A second criticism levelled at his Honour's charge regarding the meaning of the term 'fostering' was that his use of 'encouraging' as a synonym, though itself appropriate, ought to have been the subject of an additional direction. It was submitted that the jury ought to have been directed that, as a matter of law, 'encouraging' did not extend to 'favouring' a particular cause. It was submitted that a direction of that kind was essential in this case because of what later occurred in relation to the use of the dictionary.

107 A third criticism was that his Honour failed to make clear that the Code required the 'organisation' itself, and not its individual 'members', to be engaged in the 'fostering'. That submission is without merit. Self-evidently, an 'organisation', which is merely a legal construct, can only act through those who make up the 'organisation', including of course those who are its members.

108 A fourth criticism of his Honour's charge, and indeed a separate basis upon which the 'terrorist organisation' counts were said to be misconceived, was that an 'organisation' could not, as a matter of logic, 'foster' the taking of action by its own 'members'. In other words, if an 'organisation' was to engage in 'fostering' the doing of a 'terrorist act', it could only do so by encouraging others, outside the group, to commit such an act. It could not be sufficient for the members to encourage each other to do so.

109 Fifthly, it was submitted that there could be no 'fostering', in the relevant sense, unless the 'organisation' had a specific, or particular, terrorist act in contemplation. Thus, merely 'encouraging' the commission of a terrorist act, at large, could not be sufficient.

110 The Crown responded to these submissions by contending that the directions given as to the meaning of the term 'fostering' were unimpeachable. It submitted that his Honour's direction that 'fostering' should be understood as meaning 'encouraging' was, if anything, too narrow, and therefore unduly favourable to the accused. The Crown noted that not a single one of the 12 accused had taken exception to his Honour's charge as to the meaning of the term 'fostering'. It had not been suggested, at any stage of the trial, that any more limited meaning of that term ought to be applied.

111 The Crown next submitted that there was no textual reason why the term 'fostering' should be confined to the encouragement of persons outside the 'organisation'. The words surrounding 'fostering', namely, 'engaged in, preparing, planning and assisting in ... the doing of a terrorist act', were not so confined. As a matter of ordinary English usage, there was no reason why the members of the group could not 'encourage' each other to do a terrorist act and, therefore, no reason why that conduct should not be regarded as 'fostering' by the group.

112 As regards the contention that there could not be 'fostering' without a specific terrorist act being in contemplation, the Crown submitted that this was not so. If that view of the section were taken, the Code would fail in one of its most basic objectives. The 'members' of an 'organisation' would be free to prepare, plan, assist in or foster the doing of a terrorist act, provided that no specific target or detailed plan had been agreed upon. The Crown submitted that both Lodhi No 1[72] and

Ul-Haque,[73] to which we earlier referred, stood directly in the path of the last submission.

113 In Lodhi No 1,[74] Spigelman CJ said:

Each of the offence sections is directed to the preliminary steps for actions which may have one or more effects. By their very nature, specific targets or particular effects will not necessarily, indeed not usually, have been determined at such a stage. In the present case, no complaint is made about Count 1 which identifies the terrorist act as bombing an unspecified 'part' of the electricity system.[75]

114 That approach was adopted in Ul-Haque,[76] where McClellan CJ at CL, with whom Kirby and Hoeben JJ agreed, said:

I do not accept the applicant's argument that a relevant distinction must be made between Division 101 and Division 102. Terrorist acts are relevantly described by reference to activities which may have been completed or which are merely planned. The definition of terrorist organisation incorporates the same concepts and having regard to the nature and purpose of the legislation I see no reason to approach it otherwise than this Court approached the relevant provisions in Lodhi.

Being the correct approach to the offence creating provision in Division 101 in my opinion the same approach is required to be taken to the definition of terrorist organisation in s 102. Accordingly, it will be sufficient to particularise an act having the character of a terrorist act without identifying a particular act which has occurred or is planned.

An organisation will be a terrorist organisation if it engages in conduct which may result in a completed terrorist act even if the act has not been completed or the planning has progressed no further than a generalised aim without descending to a specific act.[77]

115 The same point was made by Barr J[78] in a later Lodhi v The Queen[79] decision of the New South Wales Court of Criminal Appeal:

As the Chief Justice said,[80] these sections of the Code make offensive preparatory acts done at a time when the actor has not decided precisely what he or she intends to do. Accordingly, it did not matter that the evidence could not prove that the appellant had determined when, how, where or by whom the terrorist act might be carried out. The offence charged in each count was complete if the Crown proved that the relevant act was done with the state of mind pleaded ...[81]

116 The High Court has made clear that intermediate appellate courts should not depart from an interpretation of uniform national legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.[82] That applies equally to the interpretation of a federal statute such as the Code. We are not persuaded that the interpretation accorded to these provisions by Lodhi No 1,[83] Ul-Haque,[84] or Lodhi No 2[85] is plainly wrong. On the contrary, in our respectful view, that interpretation is manifestly correct.

117 In yet another departure from the written submissions filed on behalf of his client, senior counsel for Benbrika put forward, in oral argument, a new point. He submitted that the width accorded to the term 'fostering' by the trial judge meant that the scope of the various 'terrorist organisation' offences, as left to the jury, was in breach of the implied freedom of political communication, as found in the Commonwealth Constitution. When this new argument emerged, s 78B notices[86] were issued to enable this point to be developed.

118 In the end, however, the constitutional argument was only faintly pressed. That was a sensible decision. The premise upon which the argument rested was that the failure to direct the jury to disregard the extended definition of 'fostering', as set

out in the dictionary, meant that the judge had tacitly given that broader definition his judicial imprimatur.

119 There is no warrant for that premise. The jury were told, in the clearest of terms, that the term 'fostering' meant nothing more than 'encouraging'. It is not suggested that a direction in those terms was in any way deficient. We will return to the submission that the jury may, nonetheless, have disregarded his Honour's charge, and instead applied the broader dictionary definition (as will be seen, we do not think that there is any realistic chance that they did so). It follows that the constitutional issue, if it otherwise had any merit, simply does not arise in this case.[87]

120 For these reasons, the grounds relating to 'fostering' must fail.

121 His Honour directed the jury, in accordance with s 102.1(1) of the Code, that the term 'member' had the following meaning:

A member includes an informal member and a person who has taken steps to become a member.

122 The grounds that complain of his Honour's directions regarding this element of the 'terrorist organisation' offences were dealt with only briefly in oral submissions. Essentially, the applicants contended that the trial judge left the definition of 'member' to the jury on a wider basis than that for which the Crown contended. They argued that the case against each accused had always been put on the basis that he was a 'full member' of the group. It had not been suggested that any individual accused should be found to have been an 'informal member', or a person who had 'taken steps to become a member'.

123 It was further submitted that, at trial, the Crown had positively eschewed any reliance upon the broader definition of 'member', as set out in s 102.1(1). Accordingly, so it was said, the jury should have been directed that this extended definition had no application to this case.

124 In response to a question from the Court, it was claimed that exception had been taken, at trial, to his Honour's direction as to the meaning of the term 'member'. However, our reading of the transcript suggests that it was only Majed Raad on whose behalf such exception was taken. He, of course, was acquitted and is not a party to this appeal. None of the other accused joined in the exception.

125 In the course of oral argument, the suggestion was again made that, at trial, the Crown had specifically stated that it would not rely upon the extended definition of 'member' in s 102.1(1). However, no transcript references were provided to support that supposed concession, and we have been unable to locate any such statement having been made.

126 The Crown, in reply, acknowledged that the issue of 'informal membership' had not specifically arisen during the trial. However, that did not mean that the Crown had eschewed reliance upon the statutory definition. It submitted that the jury had been correctly directed as to the meaning of the term 'member' in accordance with the definition found in s 102.1(1). It was submitted that there had been no express concession of the kind now claimed to have been made.

127 There is no immediately obvious reason as to why the Crown would have made the concession for which the applicants now contend. The Code specifically provides for an extended definition of 'member'. There could be no forensic, or other, advantage to the Crown in narrowing its case against the accused. In the absence of any support in the transcript for the contention that such a concession had been made, we can see nothing wrong with his Honour having directed the jury entirely in accordance with the statutory definition.

128 It was next submitted, on behalf of the applicants, that his Honour should have directed the jury that, in order to become a 'member' of a 'terrorist organisation', a person had to 'commit some definable act toward that particular end'. That submission had been pressed at trial by counsel for Majed Raad, but was taken up in the written submissions filed in this Court on behalf of Benbrika and Ahmed Raad.[88] It was submitted that the jury would otherwise be 'left at large as to how to determine the issue of whether or not a particular accused was a member'.

129 The Crown replied by submitting that such a direction would require the prosecution to prove an additional, and unnecessary, element in order to establish the 'membership' offences. It was submitted that there was nothing in the Code to suggest any such additional requirement and, for that reason, this Court ought not to read into the Code such an additional element.

130 In the end, the point seems to us to be largely covered by Lodhi No 1,[89] Ul-Haque[90] and Lodhi No 2.[91] The argument that there must be a 'definable act' towards a 'particular end' comes close to an argument that there must be some particular target in mind or, if not that, at least some specificity as to what those involved contemplate doing. For the reasons previously given in relation to the 'fostering' grounds, that submission cannot be accepted.

131 Finally, we note that counsel for Ahmed Raad, in his written submissions, argued that the jury should have been directed that there was a distinction to be drawn between being a 'member' of a terrorist organisation, and merely being 'associated' with such an organisation. Counsel for Merhi had made that same submission at trial, and counsel for Bassam Raad had taken exception to his Honour's charge for having failed to draw that distinction.[92] No other accused had joined in either Merhi's submission, or Bassam Raad's exception.

132 When asked at trial what, if anything, he wished to say in response to the exception taken on behalf of Bassam Raad, senior counsel for the Crown replied that he understood that the point was no longer pressed. That assertion was not challenged. In those circumstances, it is hardly surprising that the jury were not redirected.

133 In our view, the trial judge was not required to explain to the jury that there was a difference between being a 'member' of a terrorist organisation, and merely being 'associated' with such a body. Section 102.8 of the Code makes provision for an offence of being 'associated with' a 'terrorist organisation'. That offence carries three years' imprisonment, and is therefore plainly less serious than the 'membership' offence. None of the accused in the present case was charged with having been 'associated with' a 'terrorist organisation'.

134 The Crown submitted that it could only have confused the jury to direct them as to the differences between 'membership' and 'association' when the latter offence was not in issue at the trial. We see force in that submission. The notion of 'membership' of an organisation is one that a jury would readily understand. 'Membership' plainly connotes more than merely having an 'association' with a group.

135 In any event, the jury, by acquitting a number of the accused, clearly distinguished between those who played active roles within the group, and those who merely took part from time to time in discussions and education sessions. A peripheral connection to the group was obviously not seen as sufficient. We are satisfied that the jury understood their task, and were not misled by his Honour's charge into giving the term 'membership' too broad a meaning.

136 For these reasons, the grounds relating to 'membership' are not made out.

137 The trial judge directed the jury as to the requisite standard of proof as follows:

The law requires proof beyond reasonable doubt in a case such as this. The onus of proof, of course, is on the Crown. The Crown must establish the guilt of the accused beyond reasonable doubt and it does that, of course, by calling the evidence in front of you and by relating that evidence to the count that you are considering and you then determine whether, in fact, you are satisfied beyond reasonable doubt that that count has been proved. If you are not satisfied, then the presumption of innocence is not rebutted and the accused is acquitted.

138 The applicants submitted that his Honour's direction as to the standard of proof fell short of what was required. They first submitted that the jury should have been told that the expression 'beyond reasonable doubt' required them to be 'sure' or 'certain'.[93] They next submitted that the jury should have been told that the case had to be proved to the criminal standard, which is 'the highest standard of proof known to the law'. Moreover, that standard should have been contrasted with the civil standard, which the jury should have been told was significantly lower, namely, 'on the balance of probabilities'.

139 The first of those submissions was put formally only. It cannot succeed in this Court. The High Court has said, on numerous occasions, that a trial judge should not, in ordinary circumstances, attempt to define the expression 'beyond reasonable doubt'. Nor should a judge expand upon the meaning of that expression, unless there is a particular reason to do so.[94] This Court has, of course, consistently followed what the High Court has said.[95]

140 Even where some elaboration of the expression may be warranted, it has generally been held that a trial judge should go no further than telling the jury that 'reasonable doubt' is a doubt which they, as ordinary people, may be prepared to entertain.[96] The High Court has said repeatedly that it is a mistake to depart from the time-honoured formula. As Dixon CJ observed, in Dawson v The Queen:[97]

The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions.[98]

141 In recent years, other common law jurisdictions have moved from this restrictive view.[99] In this country, however, the law on the point is well settled. Only the High Court can now alter the law on this subject.

142 The second limb of the applicants' submission also faces a number of hurdles, though it was said to be supported by two recent decisions of this Court, Cavkic (No 2),[100] and R v WG.[101] In Cavkic (No 2),[102] the Court referred with apparent approval to the fact that the trial judge in that case had directed the jury that the criminal standard was the 'highest' standard of proof known to our law. He had also specifically contrasted that standard of proof with the lesser standard applied in civil cases.

143 It is one thing, however, for a court to refer to a particular direction with approval. It is quite another to stipulate that any failure to give a direction in precisely those terms will give rise to a miscarriage of justice. The Court in Cavkic (No 2)[103] may have given approval to the trial judge's charge in that case, but it certainly did not determine that a direction in those terms was essential.

144 In R v WG,[104] the trial judge was faced with a question from the jury as to whether a finding that the complainant's evidence, in a case involving sex offences, was 'plausible' meant that the Crown had proved its case 'beyond reasonable doubt'. The judge, no doubt perplexed by that question, declined to answer it. He merely reiterated that the jury had to be satisfied 'beyond reasonable doubt'. Not surprisingly, in those circumstances, the conviction was quashed.

145 A direction of the kind for which the applicants now contend is contained in the Victorian Criminal Charge Book, produced by the Judicial College of Victoria. It recommends that juries be told:

This is the highest standard of proof that our law demands. It can be compared with the lower standard of proof that is required in a civil case, such as where one person sues another for breach of contract. In that situation, matters only need to be proved on what is called the "balance of probabilities". That is, they need to be shown to be more likely than not.[105]

146 Many judges in this State, both in the Trial Division of this Court and in the County Court, routinely direct juries in accordance with this recommended charge. That is the prudent course to take,[106] but it does not follow that a failure to use the exact wording of the model charge means that the trial has miscarried.

147 In R v JMA,[107] this very point was raised before this Court. It was submitted that the trial judge's failure, in that case, to contrast the criminal standard of proof with the lesser civil standard of proof meant that the trial had miscarried. That argument was rejected. Buchanan JA, with whom Maxwell P and Neave JA agreed, said:

The trial judge instructed the jury several times during the course of her charge that the Crown was obliged to prove the elements of the offences beyond reasonable doubt. Her Honour did not attempt to explain the meaning of the phrase "beyond reasonable doubt". It is well established that "it is both unnecessary and unwise for a trial judge to attempt explanatory glosses on the classical and ... popularly understood formula." Trial judges may contrast the criminal standard of proof with the standard of proof in civil proceedings and on occasions do so. I have some doubt, however, whether it assists a jury to understand the meaning of the words "beyond reasonable doubt" to tell them what it does not mean.

...

At all events, I think the trial judge did not err in failing to make the comparison. In the end counsel for the applicant conceded that the absence of the comparison by itself did not impeach the verdicts, but rather contributed to verdicts which were unsafe.[108]

148 Recently, in R v Carter,[109] this Court revisited the matter. There, it was submitted that the failure to direct the jury that the criminal standard of proof was 'the highest standard known to the law', coupled with the failure to contrast the criminal and civil standards, had led to a miscarriage of justice. That submission was rejected. Weinberg JA, with whom Buchanan JA and Coghlan AJA agreed, said:

the judge's direction to the jury that the words "beyond reasonable doubt" meant what they said, and required no further definition, left the elucidation of that expression to the jury, in accordance with orthodox principle.[110]

149 In the present case, there was nothing to indicate that the jury had any difficulty in understanding the meaning of the expression 'beyond reasonable doubt'. The accused were all represented by experienced counsel. No complaint was made of the adequacy of his Honour's direction to the jury regarding the standard of proof. That, of itself, is a telling factor.

150 The grounds relating to the direction as to the standard of proof must fail.

1. FAILURE TO EXCLUDE EVIDENCE FOUND AT LOUTH (BURNT BATTERY AND SPARK PLUGS)

151 In support of its case that the accused were engaged in clandestine training for possible future terrorist acts, the Crown relied upon the discovery of a number of items found at a campsite near Louth, in country New South Wales. It was alleged that, in March 2005, Joud, Sayadi and Ahmed Raad, together with four acquaintances from Sydney, had all attended this campsite. The items in question were the remnants of a six-volt lantern battery and five heat-affected spark plugs, all of which were located in the remains of a campfire.

152 The applicants objected to the admissibility of this evidence. They submitted that these items could not be connected in any meaningful way to any of them, and that they were therefore 'insufficiently relevant or too remotely relevant' to warrant admissibility.[111] They further submitted that any linkage was 'purely speculative'.[112] In this Court, it was submitted that, even assuming that this evidence had some probative value, it was far outweighed by its likely prejudicial effect.[113]

153 The Crown replied by submitting that the trip to Louth was a clandestine training and 'bonding' camp. It submitted that this could be inferred from the content of conversations leading up to,[114] during,[115] and following the trip.[116] Items found at the campsite, in addition to the battery and spark plugs, included spent cartridges from two weapons (one of which belonged to one of the Sydney participants), and a piece of paper the condition of which was consistent with its having been used as a target. There was also evidence of shots having been fired at trees. The Crown submitted that this evidence showed that the trip had a sinister character.

154 The Crown further submitted that the evidence showed that there was a connection between the following:

• Joud, Sayadi and Ahmed Raad and the four Sydney men; and

• Joud, Sayadi and Ahmed Raad and the campsite (and, therefore, the items in question).

155 The evidence upon which the Crown relied in support of the inferences it invited the jury to draw included surveillance of the seven men which indicated their having travelled in convoy to the campsite from the same motel at Casula, in New South Wales. It also included DNA of two of the Sydney men which was found at the scene of the campfire, and spent cartridges from a weapon belonging to one of the Sydney men which was found at the scene. Finally, it included various recorded conversations which, when considered in context, were said to support the inference that all seven men were on the same camping trip, and participating in the same activities.

156 In his ruling upon the application to exclude this evidence, the trial judge said:

The question the Court has to determine in deciding the relevance and admissibility of these objects is whether they pass a threshold test for relevance. Relevance is often a matter of degree. The finding of a battery by itself would not have raised, one would have thought, the relevance of it as an item of evidence in this case to a sufficient level to make it admissible. But a battery found connected to a spark plug would enable a jury to draw an inference that somebody was trying to create something that would create a spark. The jury would not need any special electrical knowledge to draw that inference, even if the person who had the knowledge then went on to say: "But it is not going to work". ... [I]t is common knowledge that a dry-cell battery contains an electric charge, wires transfer current, the concept of a spark plug conveys the idea of a spark, and that a spark is needed to ignite things, particularly inflammable or explosive substances. In my opinion, the evidence does reach the threshold for admissibility on the case as it is presently stated.

The second limb of the defence contention is that nothing connects the Melbourne accused to these objects. There is no doubt that some of the Melbourne accused went to Louth, and there is no doubt that the Sydney residents can be linked to the area surrounding this campsite. That they were friends of the Melbourne accused can be established. That they were at the property at the same time can be established. The inference that the jury could draw is that they camped together and camped in the same area. If they drew that inference, there would be a connection between the Melbourne accused and the campsite, and, accordingly, with the campfire and with what was found in the fire. The inference need not be the only inference open; the evidence is not central to the Crown's circumstantial case.

Whether that inference is drawn is a matter for the jury after hearing the evidence and argument. In the circumstances I will admit the evidence that this material was found in the campfire at Louth. If, as I indicated in argument, there is some change in that evidence before this matter is finally put before the jury, there may be another argument available, but on the material as it presently stands, that evidence - the evidence of Kelleher and the evidence of the police officers of finding the material - is relevant and admissible.[117]

157 As can be seen, this ruling turned essentially upon relevance. It appears that, at trial, this was the sole basis upon which this evidence was sought to be excluded. The matter was debated, though it was never clearly resolved, whether discretionary exclusion was being sought as well. Even if that were so, we are not persuaded that this ground has merit.

158 His Honour's analysis of the relevance of this evidence was, in our view, compelling. Contrary to the applicants' submission, it was by no means 'speculative'. It was well open to the jury to conclude that Joud, Sayadi and Ahmed Raad had attended the camp at Louth, and that they had been involved, to some degree, in an attempt to use the battery and spark plugs to generate an electric current. It was further open to the jury to conclude that the reason why such a current was sought to be generated was so that it could be used to detonate an

explosive. It was of no relevance that the evidence was that this equipment could not, in fact, have achieved that goal.[118]

159 A separate submission regarding the admissibility of this evidence was advanced by counsel for Ezzit Raad. He, of course, was not at Louth. For that reason, it was submitted that the evidence of the battery and spark plugs had less relevance in the case against him, and accordingly potentially greater prejudice, than in the case against those who were there.

160 The jury were instructed, in the clearest of terms, that, when it came to considering whether any individual accused was a 'member' of a 'terrorist organisation', they had to consider only the evidence admissible against that particular accused. They would have understood that the items found at Louth could be relevant when considering whether the existence of an 'organisation' had been established, but could not be used in determining whether someone such as Ezzit Raad was a 'member' of that body.

161 It is of some interest to note that Whealy J, of the New South Wales Supreme Court, who was the judge during the trial of the Sydney participants which took place in 2008, dealt with a similar application to exclude evidence of the finding of the battery and spark plugs at Louth. His Honour ruled that this evidence was relevant, and admissible, and should not be excluded on the basis that its probative value was outweighed by the danger of unfair prejudice, pursuant to s 137 of the Evidence Act 1995 (NSW). He concluded that the circumstances of the trip, in the context of the Crown case, made what might otherwise seem to be an innocuous piece of evidence sufficiently probative to warrant admissibility.

162 Whealy J's analysis accords entirely with our own. The grounds relating to the admissibility of the items found at Louth are rejected.

1. FAILURE TO EXCLUDE EVIDENCE OF BENBRIKA'S TRIP TO MT DISAPPOINTMENT

163 Merhi was the only applicant to file a written submission in support of this ground. It arises out of a trip that Benbrika took with SIO 39 in October 2004 to Mt Disappointment, which is located on the southern end of the Great Dividing Range. During the course of that trip, SIO 39 demonstrated the use of explosives to Benbrika, and engaged in conversations with him upon which the Crown relied.

164 Merhi's written submission before this Court simply said:

For the reasons advanced by Mr Montgomery at trial (on behalf of all accused),[119] the evidence of Mr Benbrika's trip to Mt Disappointment should not have been admitted against the applicant.[120] The trial judge summarised Mr Montgomery's arguments regarding Mt Disappointment as follows:

Mr Montgomery SC argued that evidence of the Mt Disappointment episode was inadmissible because it was irrelevant to any issue in the trial. In particular, he sought to counter the Crown argument that it was relevant to the issue of the nature and the objects of the organisation by pointing out that there was no evidence that Benbrika had ever shared knowledge of the Mt Disappointment demonstration with any other members of the organisation. He rhetorically asked how could it be relevant to the nature of the organisation if no-one else in the organisation knew of it. Benbrika was off "on a frolic of his own" outside the organisation. If it was an organisation activity he would have told the others about it.[121]

165 In this Court, counsel for Ezzit Raad submitted that the evidence of Benbrika's trip with SIO 39 had to be read together with conversation 102, which was between those same two individuals. There, in referring to their earlier discussions about explosives, Benbrika used the expression 'given that we are only two persons'. It was submitted that, in light of that expression, whatever may have taken place at Mt Disappointment had nothing whatever to do with the charges brought against Ezzit Raad. Benbrika was, as Mr Montgomery had submitted at trial, simply 'on a

frolic of his own'. Counsel for Ahmed Raad joined in that submission, although the point was not included in any of his grounds of appeal.

166 The Crown responded to this argument by submitting that it had been open to the jury to find that Benbrika had been warned about SIO 39, and about whether he might be a danger to the group, before conversation 102 took place.[122] Anything said by Benbrika to SIO 39, such as 'given that we are only two persons', had to be viewed in that context. The jury would have been entitled to discount statements of that sort, and treat them as nothing more than a 'testing out' by Benbrika of SIO 39.

167 The Crown submitted that the jury could properly have used the evidence of Benbrika's trip to Mt Disappointment against each of the applicants on each of the 'terrorist organisation' counts. It submitted that this evidence could be used as the basis for an inference as to the existence, and nature, of the organisation. Moreover, it was relevant in considering whether the organisation was engaged in 'preparing' or 'fostering' the 'doing of a terrorist act'.

168 The Crown drew attention to the following passages from his Honour's ruling regarding the admissibility of this evidence:

Evidence that someone watched a demonstration of an explosive device is relevant to the question as to whether that person was preparing the doing of something involving the explosion of an explosive device. With other material it could form an important part of a circumstantial case as to the preparation of a terrorist act.

Evidence that the leader of an organisation took part in a demonstration of an explosive device is relevant to the issue as to whether the organisation itself was preparing the doing of a terrorist act as that concept is referred to in s 100.1(2) of the Criminal Code. Whilst one explanation is, of course, that Benbrika was off on a frolic of his own and this had nothing to do with the group, it is also a reasonable inference that it did. Combined with other evidence in a circumstantial case, a jury may well regard it as the only reasonable inference open and thus be entitled to use it to reason towards a conviction.

The Mt Disappointment event does not prove of itself that any of the other accused was a member of the organisation. That evidence must come from elsewhere but the fact that Benbrika told no-one of the demonstration does not make it any the less relevant to prove the raison d'etre of the organisation itself. Had Benbrika or any of the accused undertaken a course of private study in explosives or been in possession of books or manuals on explosive techniques, that evidence, too, would be relevant to the same question. Whether all the evidence ultimately proves that the organisation is a terrorist organisation will be a matter for the jury. The evidence sought to be excluded is relevant to the issue discussed and will be admitted.[123]

169 His Honour's reasons for allowing evidence of the Mt Disappointment trip to be led are cogent. The grounds relating to the admissibility of the evidence relating to Benbrika's trip to Mt Disappointment must fail.

1. DIRECTIONS IN RELATION TO LIES IN RECORDS OF INTERVIEW

170 Counsel for both Ahmed Raad and Ezzit Raad contended that the trial judge erred in directing the jury that, if they concluded that either applicant had told lies in his record of interview, the fact that he had lied went only to credibility and that the jury were not to reason that, just because he had told lies, he was guilty of the offences with which he was charged ('the first Zoneff direction'[124]). Counsel for the applicants later took exception to the first Zoneff direction, and his Honour then redirected the jury. But counsel submitted that the redirection was insufficient to overcome the problem. In particular, it was said the trial judge's direction and redirection were deficient in failing to emphasise that the Crown did not contend that either applicant had lied in his record of interview.

171 The trial judge gave the first Zoneff direction immediately after completing his summary of Ahmed Raad's record of interview. The last part of his Honour's summary of that record of interview was as follows:

[Ahmed Raad is] asked further about the garage conversation and eventually the police officer says at 378, "You are denying this conversation took place?" Answer: "Yep, well, I don't remember it." Question: "You don't remember it?" Answer: "No." Question: "Does that mean it didn't take place or you don't remember it?" Answer: "Well, I reckon it didn't take place.'' That is repeated a couple of times, and so it goes on to the end.

172 His Honour then gave the first Zoneff direction, as follows:

The answers to that record of interview are admissible as evidence against Ahmed Raad, but I must give you this warning: If you come to the conclusion that some of those answers are false, and you may, they appear to contradict, you might think, some of the other evidence, particularly perhaps the garage conversation but other things as well. You must not reason that because you might think he's lied in this document, lied in this record of interview with the police, that he is therefore guilty of this offence. The two things again don't follow. It's a fallacy to reason either that he's dishonest, therefore he's a terrorist, or that he lied, therefore he's a terrorist, but if you come to the conclusion that there are lies in that record of interview, you can use it when you are assessing his credibility generally, that is to say you can use it for determining whether you believe any of the record of interview or some of the record of interview. You can take it into account if you come to the conclusion that he lied. You may not, of course, but if you did, that would be the situation.

173 Counsel later took exception on the basis that the Crown had never suggested that the record of interview contained any lies. Therefore, counsel had not addressed on that possibility, but rather had rested the applicant's defence on the apparent verisimilitude of the answers given in the record of interview. Accordingly, it was submitted, the trial judge had undermined the applicant's defence by appearing to give judicial weight to the possibility that the answers, or at least some of them, were lies. Counsel submitted to the trial judge that, in order to rectify the problem thus created, he should give the jury:

a very strong re-direction effectively that the Crown has never asserted there are any lies in the record of interview and that Raad's counsel therefore ... effectively had no chance to address such an allegation.

174 After some further discussion between his Honour and counsel about the point, the issue concluded with the following:

HIS HONOUR: You say that the Crown never says he lied, there should be a very strong re-direction to that effect.

COUNSEL: Yes, and probably just leave it there.

HIS HONOUR: The Crown never asserted that he lied.

COUNSEL: And leave it there because I don't want your Honour to go back to the very passage that we differ about as to how your Honour spoke to the jury about that, I don't want to highlight it again.

HIS HONOUR: I will consider that.

175 After further discussion about other matters, the trial judge redirected on the point as follows:

The next matter I want to draw your attention to is that with respect to the records of interview of Ezzit Raad and Ahmed Raad ... it was no part of the Crown case in either of their cases that anything they said in their record of interview was untrue. So if I suggested that it was part of the Crown case, I should not have done that. So if you simply take it that it is no part of the Crown case that any part of their records of interview were untrue.

176 Counsel for Ahmed Raad and Ezzit Raad contended before this Court that the redirection did not cure the problem created by the first Zoneff direction. They submitted that the trial judge should have directed the jury that they should not find that any of the answers given in the record of interview were lies.

177 We reject that contention. In our view, there was nothing wrong with the first Zoneff direction. As his Honour explained to counsel,[125] he was concerned that, because there was clear evidence that the applicant was involved in the 'garage conversation',[126] the jury might conclude that his answer to police in the record of interview - that he could not remember the conversation or that it did not happen - was a lie. Therefore, unless given a Zoneff direction, the jury might reason impermissibly that, because the applicant had lied, he was guilty of the offences with which he was charged.

178 That concern was well-founded, in our view. Given the objective evidence that the 'garage conversation' had taken place, and the clear inconsistency between that evidence and the applicant's answer that he could not remember the conversation, or that he believed that it did not happen, there was plainly a significant chance of the jury concluding that the answers were a lie. If they came to that conclusion, there was also a chance of their reasoning that, because the applicant

had lied, he was guilty as charged. In those circumstances, the trial judge was duty bound to give the jury a Zoneff direction, just as he did.[127]

179 Counsel's contention appears to be based upon a misconception that it is only ever appropriate for a judge to give a Zoneff direction in a case in which the Crown allege lies. Plainly that is not so. As Kirby J said in Zoneff v The Queen,[128] the criterion is not the prosecutor's intention. Indeed that is irrelevant except in so far as it may help in identifying what the jury might make of the evidence. What is determinative is the way in which the jury might use the evidence if the direction were not given.

180 We add, in case it matters, that, even if there had been a problem with the first Zoneff direction (and in our view there was not), the trial judge's redirection accorded precisely with what defence counsel had requested.

181 Accordingly, the grounds relating to lies in the records of interview must fail.

8.1 Discharge for sweep by Protective Service Officer

182 The trial began on 13 February 2008. On 22 February 2008, while the prosecutor was still opening the Crown case, the trial judge learned that Protective Service Officers had been conducting explosive ordinance reconnaissance sweeps of the courtroom - and on one or more occasions, the jury room - since the trial began. His Honour immediately sought a report as to what had taken place during the sweeps from the police officer in charge of court security, Senior Sergeant Brett Simpson. He directed that, thenceforth, no police officers were to go into the jury room without his express permission.

183 Later that day, his Honour received a written report from Senior Sergeant Simpson outlining the routine procedure employed by Protective Service Officers for ensuring that the courtroom was in fact a 'secure court', as required. The report was unclear, however, as to whether the sweeps had extended to the jury room on every day since the trial began. Thus a supplementary report was sought, and provided, which suggested that the sweep had extended to the jury room on only one occasion.

184 On the facts, as they were then known, counsel for all applicants applied to have the jury discharged.

185 After hearing submissions, his Honour received oral evidence from Senior Sergeant Simpson, Protective Service Officer Richardson (who was referred to in Senior Sergeant Simpson's second report), and from his Honour's associate, Mr Patrick Kelly. That evidence did not enable the trial judge to make a definitive finding as to the number of days on which the jury room had been swept, but his Honour concluded that, in all probability, the room was entered by one or more Protective Service Officers on most mornings on which the Court sat between 13 and 22 February 2008.

186 The trial judge further found, however, that Protective Service Officers were not members of the Victoria Police except for matters pertaining to their employment, discipline, complaints and investigations into their conduct. Rather, they were appointed pursuant to Part VIA of the Police Regulation Act 1958 (Vic), by the Chief Commissioner of Police, for the purpose of providing services for the protection of persons holding certain official or public offices, and of certain places of public importance. Accordingly, they had no role in the investigation or prosecution of crime. Although subject to the direction of the Chief Commissioner, they were regulated by a command structure separate from members of the Victoria Police. None of the Protective Service Officers involved in the sweeps had any connection with any member of the prosecution team, or any police officer connected with the investigation of the subject offences.

187 Counsel for the applicants submitted below that there was 'a high degree of necessity' to discharge the jury because of the perception that the Protective Service Officers were, or might have been, in the jury room for a wrongful purpose. Counsel argued that the perception was greater than it would otherwise be because of the constant surveillance to which the applicants had been subjected by police and other agencies over a long period. It was contended that the perception was akin to that which would be created if it became known that prosecution or defence counsel had entered the jury room.

188 The trial judge rejected the discharge applications. As his Honour observed, there was no suggestion of actual interference with the jury or any of its members. It was not suggested that members of the jury knew anything of the activity of the Protective Service Officers involved in the sweeps of the jury room. The complaint was based solely on perception. In his Honour's view, a fair-minded and informed member of the public, who knew about the trial, the statutory functions of Protective Service Officers, the task they were in fact undertaking when they went into the jury room, and their apparent lack of any connection to the prosecution or investigation of these offences, could not reasonably come to an adverse apprehension or suspicion.[129] As his Honour said, it was much more likely that such a person would apprehend that the Protective Service Officers were going about their ordinary function of checking the courtroom for incendiary or explosive devices and thereby protecting the users of the Court, including the jury.[130]

189 The applicants contended that the trial judge was in error in so concluding. Counsel submitted that a reasonable observer would view the Protective Service Officers as an arm of the State, whatever the difference in command structure and notwithstanding that they were independent of the prosecution.

190 We see no error of the kind alleged. As the trial judge rightly held, the matter was to be decided according to the perception of a hypothetical fair-minded person with knowledge of the true facts.[131] We agree with his Honour that such a person would be most unlikely to form an adverse opinion or conclusion. It is much more likely that he or she would conclude that the Protective Service Officers were simply attempting to do their job of protecting all concerned.

191 Accordingly, the grounds relating to the jury room sweep discharge applications are rejected.

192 At the beginning of the trial, and repeatedly during the course of the trial, the trial judge warned the jury that the case was to be decided on - and only on - the evidence and information given to them in the courtroom. He told them that they were forbidden from obtaining any information relating to the trial from any outside source, including the internet.

193 After the problem concerning the Protective Service Officers' sweep of the jury room had been resolved, the judge implemented practices to reduce further risks of that kind. One of those practices was the provision of a bin in the jury room for depositing unwanted and discarded papers for secure shredding.

194 On 27 June 2008, his Honour's associate, charged with the task of emptying and shredding the contents of the bin, noticed that it contained a bundle comprised of the following six internet printouts:

• a printout from the 'Wikipedia' website of eight pages being an article regarding the word 'organisation';
• a printout from the 'Wikipedia' website of one page concerning the word 'intention';
• a printout from the 'Wikipedia' website of one page concerning the word 'member';
• a printout from the 'Reference.com' website of three pages concerning the word 'membership';
• a printout from the 'Reference.com' website of three pages concerning the word 'intentional'; and
• a printout from the 'Reference.com' website of four pages concerning the word 'organisation'.

195 Once this had been drawn to his Honour's attention, and all counsel had been provided with copies of the material, each of the applicants applied to have the jury discharged. It was submitted that there had been a 'material irregularity'[132] constituted by the jury having consulted the internet on matters pertaining to the trial, in deliberate defiance of the trial judge's repeated directions not to do so. Counsel for the applicants submitted that the fact that the jury had acted in disregard of his Honour's clear directions, coupled with the nature of the material downloaded from the internet, demonstrated actual bias on their part. Alternatively, it would raise in the mind of a fair-minded observer an apprehension of such bias. More generally, it was submitted that the jury, by their actions, had rendered the trial unfair. In effect, the presumption that a jury will follow a judge's directions was said to have been rebutted by the discovery of the internet searches. Thus, it could be seen that the verdict was delivered by a jury which wilfully flouted judicial directions.

196 In order to determine the application for discharge, the trial judge undertook a careful examination of each of the documents. His Honour found that the most extensive of those which dealt with the concept of 'organisation' was an encyclopaedia article written from a sociological or similar perspective. It was 'replete with jargon'. As his Honour observed, the article did not suggest a meaning of the word 'organisation' in any way antithetical to the directions which he intended to give the jury concerning the meaning of that term.

197 On that basis, the trial judge concluded, the document did not reveal any material prejudicial to the interests of any of the applicants. It was, at worst, an irrelevant distraction, in much the same way as might be a newspaper or magazine article bearing some peripheral relationship to a matter the jury had to decide. Similarly, in the case of the Wikipedia documents containing definitions of 'member' and 'intention', and the Reference.com documents concerning 'membership', 'intentional' and 'organisation', his Honour found that there was nothing in them which was, in any way, inconsistent with the directions which he intended to give the jury or which was otherwise prejudicial to the applicants.

198 Further, the trial judge observed that, even if the documents had conveyed some conception of the significant terms that was opposed to the applicants' interests, those documents had been discarded on 27 June 2008. The jury were still to hear the final addresses of 13 counsel, and the judge's lengthy and detailed charge. In those circumstances, his Honour observed, it bordered on fanciful to suppose that the discarded material would be of any significance to the jury's deliberations.

199 Finally, as to whether the jury had deliberately disobeyed his Honour's directions not to consult the internet on matters germane to the trial, his Honour found that it was distinctly possible that they had interpreted his directions as meaning that they should not seek information about the case, rather than using the internet for more general purposes. Their innocence in that regard was supported by the lack of any attempt to conceal the fact that they had consulted the internet on the meaning of the subject terms.

200 On 3 July 2008, before the trial judge announced his decision on the discharge applications, counsel for the applicants drew his Honour's attention to the fact that the radio broadcaster Derryn Hinch had referred, in the course of one of his recent afternoon programs, to a prosecution in Queensland which had been permanently stayed because of adverse publicity. Hinch had then added that he predicted that 'a long trial in Melbourne' was about to be aborted because of something which had been found in the jury room. Counsel for the applicants submitted that Hinch's revelations may well have been heard by a member, or members, of the jury. Alternatively, they could have been told of those revelations by someone else, and so could have learned that something found in their jury room had put the trial in jeopardy.

201 The trial judge concluded that what Hinch had said made no difference to his ruling. However, he decided that he should reinforce, in the minds of the jury, that the Court was keen to ensure that they were approaching their task in an impartial way, unconcerned by anything which might occur outside the Court - or, for that matter, within the Court - to which they ought not to pay any attention.[133]

202 According to his Honour's ruling, the reasons for which were not published until after the trial, he was of the view that none of the applicants wanted him to undertake an inquiry into either the internet material or the Hinch broadcast (either under s 78B of the Juries Act 2000 (Vic) or otherwise). Accordingly, his Honour said, he determined to approach the task without disclosing the Court's knowledge of the internet material, or adverting to the possibility that one or more of the jurors might have heard Hinch's comments.[134]

203 His Honour asked the jurors individually to communicate with the Court, in writing, as to whether they had any concerns as to their capacity to approach the case in accordance with their oaths. Each of the 14 jurors then handed a written response to the trial judge confirming that he or she was able to determine the case on the material before the Court, without distraction, and without any concern as to any outside influence. The jurors' notes were placed in an envelope which was sealed and put on the Court file with a direction that it be opened only by or on the order of a judge.[135] Thus the application for discharge was refused.

204 Counsel for the applicants submitted that the trial judge was in error in several respects. To begin with, they said, there was no ambiguity about his Honour's directions. The jury could not have been in any doubt that they were prohibited from consulting the internet on anything to do with the case, including the definitions of terms.

205 Secondly, and contrary to what his Honour said in his ruling, there had been requests by counsel for Benbrika, Joud, Ezzit Raad and Ahmed Raad for the jury to be questioned as to whether they, or any of them, had accessed the internet (without divulging to the jury that the internet searches had been located in the shredding bin). Counsel for Benbrika had initially opposed such an inquiry, but had later twice pressed for one.

206 Thirdly, and consequently, it was submitted that his Honour had erred in proceeding upon the assumption that the jury had not consulted extraneous materials other than the internet searches found in the shredding bin. In the absence of an inquiry of the kind which had been sought, it was impossible to know what other materials the jury may have consulted in defiance of his Honour's directions.

207 Taking those points in turn, we consider that there is no substance in the first of them. In his ruling, the trial judge set out an example of the warnings which he had given the jury about consulting extraneous sources. It was in the following terms:

Similarly, you should be wary of any newspaper reports concerning this case, television reports, or reports of similar cases here or anywhere else in the world. You have to decide this case on the evidence that is led in this courtroom. It is important that you do not do or attempt to do any research of your own. The evidence that will be given in this courtroom is the evidence you will decide the case on. You must not start reading about Islam or Muslims or terrorism or anything of that nature. You must not go to the internet and seek any information. The information that you have to decide this case will be given to you in this courtroom. I can't emphasise this more strongly. It is extremely important. The reason for that is obvious.[136]

208 As the trial judge said, it may be that, on a strict reading of those directions, one might conclude that the jury were told not to consult the internet at all. However, in the way in which a layperson would be likely to interpret the directions, it was just as likely that they would be understood as meaning that the jury were not to seek from the internet, or elsewhere, any information about the applicants or what they were charged with.

209 In the result, we see no error in his Honour's conclusion that it was not to be inferred that any of the jury had deliberately flouted his directions or, therefore, that they had looked at any extraneous material about the applicants or what they were charged with.

210 There is perhaps more substance to the second point. It appears from the transcript that counsel for Joud did submit that the jury should be asked whether they had looked at the internet (without divulging to the jury that the internet searches had been located in the shredding bin). It also appears that, eventually, counsel for Benbrika, and counsel for Ezzit Raad and Ahmed Raad, more or less adopted that submission. Evidently, his Honour had overlooked that fact by the time he came to record his reasons for having refused the applications for discharge.

211 That said, it does not appear to us to make a great deal of difference. There were good reasons for not having asked the jury whether they had consulted the internet. For one thing, it would have highlighted the matter, and perhaps elevated the material downloaded from the internet to greater, and more lasting, significance than it would otherwise have achieved. In addition, whether or not to question the jury directly on this issue was a matter of judgment on the part of a very experienced trial judge, who had the advantage of having observed this jury closely over an extended period of time. This Court would not lightly second guess a decision of that kind.

212 The question whether there should be a discharge of a jury by reason of internet searches having been carried out in defiance of a judge's orders has been considered on a number of occasions. If the Court concludes that there has been an irregularity, it must determine whether there is a significant possibility that the irregularity affected the outcome of the trial.[137] Not every departure from the relevant laws and procedures for the proper conduct of a criminal trial may 'prejudice or colour the overall trial so as to affect the verdict'. Accordingly, such a departure will not necessarily constitute a miscarriage of justice.[138]

213 The test for determining the materiality of an irregularity has been variously stated. In general terms, the question to be asked by an appellate court is whether it can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred.[139]

214 In recent years, there have been occasions when jurors have engaged in inappropriate conduct with the potential to compromise a trial. Internet searches relating to information that is both inadmissible at trial, and prejudicial to the accused, may necessitate a discharge of the jury or, failing that, on appeal an order for a new trial.[140] In general, these cases have involved internet searches of a kind that bear specifically upon the evidence in the trial, and the particular circumstances and history of the accused. The present is, of course, not such a case.

215 We also reject the contention that the judge was in error in presuming that the jury would not have consulted any extraneous materials relating to the applicants, or the offences with which they were charged. They were told in clear terms not to do so. The material found in the shredding box was of a different order altogether, and sufficiently innocuous[141] not to raise a doubt about the jury's integrity in that respect.

216 Accordingly, the grounds relating to the internet research and Hinch broadcast discharge applications are rejected.

217 The jury retired to consider its verdict on 21 August 2008. Some six days later, on 27 August 2008, before the jury separated for the evening, the trial judge gave them a particular warning about s 78A of the Juries Act 2000 (Vic). His Honour said this:

There are a couple of things I need to tell you. One is - it has nothing to do with this case, it is a general matter, it affects all trials in Victoria, that as from I think it is midnight tonight, it is now an offence for a jury to engage in any form of research concerning a case. It was simply a warning before but it has now become a criminal offence, that the Act which amended the Juries Act commence, I think it commences at midnight tonight, either last night or tonight. You have been aware from what I have said to you from the beginning of the trial that that was the case that I imposed on you at least as very strong advice in this case ...

Then, on 12 September 2008, while the jury was still deliberating, one of his Honour's associates reported having seen a copy of the Concise Oxford Dictionary in the jury room that day.

218 After discussion with counsel, the trial judge brought the jury back into Court. He told them of his concern about the dictionary, and asked the foreperson how long it had been in the jury room. She answered, '[a] couple of weeks'. When asked whether it had been used, she said: '[i]t's been used to look up the word "foster''', and that that was the only use to which it had been put. After that, the jury returned to their deliberations, leaving the dictionary in Court. As we have noted earlier in these reasons for judgment, the dictionary produced by the foreperson defined the word 'foster' as: '[p]romote growth of, encourage or harbour (feeling); (of circumstances) be favourable to.' The trial judge examined the definition in question, and found that it contained nothing untoward. In his Honour's view, that definition accorded with his direction to the jury.

219 Counsel for Taha then applied for the jury to be discharged on the ground that the discovery of the dictionary represented yet another example of the jury's having totally disregarded the trial judge's instructions. Counsel submitted that this had led him to conclude that he could have no confidence that the jury would follow his Honour's directions. All other defence counsel joined in the application.

220 The trial judge dismissed the application and stated in his ruling that he had no hesitation in doing so. His Honour said that he accepted the foreperson's statement as to the limited use which had been made of the dictionary and that, in those circumstances, however inappropriate the jury's actions might have been, the fairness of the trial had not been compromised.[142]

221 His Honour further observed that, in charging the jury, he had left it to them to interpret the word 'fostering' as an ordinary English word as to which they needed no assistance.[143] Later in his charge, he had again told the jury that 'fostering' was an ordinary English word and - as noted earlier - had added that: '[f]ostering can be synonymous with encouraging or something of that nature'.

222 In fact, as the trial judge said, although the word 'fostering' was an ordinary English word, it was not the sort of word which is used in everyday speech. In the

statutory context in which it was used he considered it to be just the sort of word on which even educated English speakers might well seek assistance from a dictionary.

223 In those circumstances, his Honour concluded, it was hardly surprising that the jury had resorted to a standard English dictionary to assist them in their understanding of the term. Indeed, in his Honour's view, there would be something faintly ridiculous about criticising laypeople who went to a standard reference source for assistance on the meaning of an ordinary English word of that kind.

224 Finally, the trial judge observed that the jury may well have perceived some inconsistency between his oft-repeated directions that they had to decide the case solely on material presented to them in the courtroom, and his specific direction that they needed no assistance from him as to the meaning of the term 'fostering'. In any event, his Honour said, he was satisfied that the jury's resort to the dictionary was not in any sense contemptuous, or in disregard of the instructions he had given them.[144]

225 Counsel for the applicants contended that his Honour was wrong to refuse to discharge the jury. They submitted that, if the discovery of the internet material in the jury room were not enough to warrant that course, the discovery of the dictionary made it abundantly plain that this was a 'rogue jury', unwilling to obey directions, and therefore necessitating that they be discharged.

226 For our part, we see no error in his Honour's reasoning, or in his conclusion that there was no 'high degree of need' to discharge the jury. As an aside, we are inclined to agree with his Honour that there is something odd about the suggestion that it is inappropriate or improper for a jury to consult the Concise Oxford Dictionary on the meaning of an ordinary English word which they are told is a question for them. With respect, there is much to be said for the view expressed by Cummins AJA in R v Chatzidimitriou,[145] that:

Responsible citizens would be affronted to be told that, in the information age, the law forbids them doing as jurors what persons have done since 1933 (or 1884 or earlier) as an aid to understanding language.[146]

227 However that may be, the important point for present purposes is that the jury's recourse to the dictionary could not have led them to conclude that 'fostering' meant anything other than what the trial judge had told them that it meant. It is improbable that, having had the dictionary removed from their possession, they would nonetheless have retained in their minds the broader (and irrelevant) meaning set out therein.[147] It is even more improbable that they would have then gone on to adopt that inapt meaning in preference to the simple and clear oral and written directions given to them by his Honour in his charge.

228 Accordingly, the grounds relating to the discharge application arising out of the dictionary having been found in the jury room are rejected.

229 During the trial, more than 480 separate TI and LD conversations were played to the jury. The jury were also provided with individual copies of transcripts of those conversations, to assist in following the conversations as the recordings were played. The transcripts were presented in individual lever-arch files and each member of the jury was provided with highlighters and pens and encouraged to mark their copy of the transcripts so as better to recall the passages which struck them as important. As each recording was played, jurors also had the option of viewing a large screen on the opposite side of the courtroom to the jury box, on which the transcript was projected. An operator, provided by the Crown, displayed the transcript, page by page, on the screen as the recording was played.

230 Before the trial began, the Crown and counsel for each of the applicants negotiated the deletion from the intercepted conversations of material which was agreed to be irrelevant, otherwise inadmissible, or of which it was perceived that the prejudicial effect outweighed the probative value. The conversations played to the jury were thus edited. The editing was noted where appropriate on the transcript, although not in the audio reproduction, and the jury were told that the editing was necessary to exclude irrelevant and other inadmissible material.

231 As part of that exercise, and consequent upon an earlier ruling of the judge,[148] the evidence that police had found a gun and other items in Joud's possession on 17 December 2004 was excluded. As a result, the recording of conversation 242, and three pages of the transcript of that conversation, were edited inter alia to exclude seven references to 'gun'.

232 A problem occurred on 8 April 2008, however, as conversation 242 was being played to the jury. Each member of the jury was presented with the correct edited transcript of the conversation, and the recording was also correctly edited. However, the image of the transcript which was projected on the large screen opposite them contained the seven references to 'gun'.

233 Counsel for all applicants applied for a discharge of the jury on the basis that the inclusion of the references to 'gun' in the projected image of the transcript created 'overwhelming prejudice'. His Honour rejected the application. After hearing argument, and referring to the principles essayed in R v Boland[149] and Crofts v The Queen,[150] his Honour held that, in all the circumstances, the problem could be dealt with by a direction to the jury referring to the event in general terms and requiring them to confine their attention to the appropriate evidence.

234 Before this Court, counsel for the applicants attacked his Honour's conclusion. They submitted that, contrary to his Honour's findings, there was a real risk that the jury had become aware of extremely prejudicial evidence (which had been excluded in the exercise of discretion) and that that risk was exacerbated by the fact that one of the police officers who gave evidence equivocated when asked about searching Joud's bedroom. In counsel's submission, there was a very high risk of the jury linking the references to 'gun' on the projected image to that officer's evidence. There was also a high risk of them concluding that, because the references to 'gun' in conversation 242 had been edited out of their copies of the transcript of that conversation, it was likely that they were being 'shut out' of other material containing allegations of criminality.

235 We do not accept those submissions. As the judge rightly observed, the principle established in Boland,[151] and approved in Crofts,[152] places responsibility on a trial judge to determine, in light of the nature of the trial and the extent of the prejudice caused by the improper disclosure of prejudicial material, whether it is necessary to discharge the jury in the interests of ensuring a fair trial. Consequently, as the High Court said in Crofts,[153] there are no rigid rules to govern the outcome of an application for such a discharge.

236 Each case depends, among other things, upon the seriousness of the occasion in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. It is accepted that a trial judge will usually have a better appreciation of the significance of the event complained of, and thus of evaluating the considerations which are relevant to the fairness of the trial when seen in context, than can be discerned from a mere reading of the transcript. Consequently, an appellate court should be slow to intervene on such an issue.

237 In this case, as the trial judge explained, there were a number of good reasons to conclude that the improper disclosure of the excluded material did not necessitate that the jury be discharged. First, as his Honour observed, there was no suggestion of any malfeasance on the part of the Crown or anyone else. It was accepted by all parties that the projection of the unedited image was simply an unfortunate mistake.

238 Secondly, as was earlier noted, each juror had in the jury box a proper transcript of conversation 242 and no copy of the errant transcript. The jury were told throughout the trial, on many occasions, that the evidence was what they heard in the recordings, not what was contained in any transcript which was provided simply as an aid to comprehension.

239 Thirdly, the jury had their copies of the correct transcript with them in the jury room for the purposes of their deliberations. They also had equipment to replay the correct recording of the conversation in the jury room when, and if, they chose.

240 Fourthly, as the trial judge observed in his ruling, during the many weeks of audio broadcasts during the trial, members of the jury had appeared generally to follow the audio broadcast with the aid of their personal copies of the transcript, marking it as they went, rather than concentrating on the projected image.

241 Fifthly, on 14 April 2008, immediately after the trial judge refused the application for discharge, he gave the following direction to the jury:

That leads me to another thing I should mention to you. A couple of times last week on the screen there were some passages from a transcript which were exhibited on the screen which are not part of the evidence in this case. You may or may not have seen it. You probably didn't, but if you did, the transcripts that are in your folders are correct in the sense that they contain all of the admissible material. They are subject, of course, to the ordinary warnings I gave you about their accuracy, about whether the voice coincides with the words, but they are accurate as to what should be before you and what shouldn't.

If any of you saw anything on the screen that you didn't recognise or wondered why it was there it was a mistake. It shouldn't have happened; it's happened and if you saw any of it, if you read any of it, you should disregard it completely. What you heard in the audio is the evidence before you and what you heard in the audio is reproduced, subject to the ordinary qualifications, in the books that you have got.

242 Finally, as his Honour recorded in his ruling, immediately after giving those directions, the judge observed the jury as carefully as he could and to his observation, none of the jurors expressed, by change in facial expression or other body language, that he or she recognised the event to which his Honour was referring or that they were aware of the event having occurred.[154]

243 In our view, and based on his Honour's reasons as outlined above, the inadvertent but momentary disclosure to the jury of the unedited transcript of conversation 242 did not necessitate a discharge of the jury. This ground is rejected.

244 Several complaints were made about what was said to be the inadequacy of the trial judge's charge to the jury. It is convenient to deal with them in turn.

245 The first was that his Honour failed adequately to identify the issues in the trial. More particularly, it was said, his Honour failed to draw to the jury's attention the evidence on which each accused relied in defending the case against him. We see no substance in that complaint. The charge was in effect divided into three parts. In the first, his Honour gave particular directions of law and explained the elements of each of the offences with which the accused were charged. In the second, his Honour outlined the way in which the Crown put its case against each of the accused. He also summarised the evidence on which the Crown relied against each accused by reference to each issue separately. In the third, his Honour dealt with the defence case presented by each accused and, as part of that, summarised the evidence relied on by that accused in relation to each issue.

246 Counsel for Taha took exception to the judge's charge on the basis that, by proceeding by way of what counsel termed a two-stage process, namely, explanation of the law followed by a summary of counsel's addresses, the judge had failed to identify the issues in the case, relate the law to those issues and 'put to the jury fairly, in the context of that conjunction between those two things, the case which each accused makes'. Counsel for the majority of the other accused adopted that exception, and adhered to it before us in support of their applications.

247 We reject that submission. While it would be a valid exception if the judge's approach had resulted in a failure to relate the facts to the issues in the case of each accused, that did not occur. At the outset of the charge, the trial judge directed the jury both orally and in writing that the issues in relation to count 1 were: (1) whether there was an organisation as alleged by the Crown during the relevant period; (2) if so, was it a terrorist organisation; (3) was the accused in question intentionally a member of that organisation; and (4) if so, did that accused know it was a terrorist organisation. In relation to the four possession counts, his Honour directed the jury that the issues were: (1) whether the accused in question intentionally possessed the item as alleged by the Crown; (2) if so, whether the item was connected with the preparation for a terrorist act; and (3) if so, did the accused know of that connection.

248 Then, throughout his Honour's directions on law, he instructed the jury as to how they could use the evidence adduced in relation to each issue. The Crown relied upon the entirety of the evidence to demonstrate that there was, in existence, a terrorist organisation as alleged. The trial judge went through all of that evidence, summarising and highlighting significant aspects of it. He also explained the way in which the Crown contended that it was to be interpreted.

249 His Honour then turned to the evidence on which the Crown relied as against each accused individually. He summarised that evidence by reference to each of the issues, in the course of which he repeated large parts of his directions on the elements of each count with which each accused was charged. Finally, after dealing with the Crown case against each accused in that fashion, the judge summarised the significant aspects of the evidence relied upon by each individual accused, and the

arguments which defence counsel had advanced as to how the evidence was to be interpreted.

250 Counsel for Ahmed Raad took exception to the charge on the ground that:

[T]here [were] about four ideas in the closing address, in my closing address which I would describe as central submissions or central themes which, in the manner that your Honour summarised, and not just mine but addresses generally, those ideas have not been addressed.

When the judge asked counsel what those 'ideas' were, counsel replied less than informatively:

The headings are jihad, sandooq, means to an end - those are the three main ones.

251 We see no substance in counsel's exception. It is plain that the trial judge dealt specifically, and repeatedly, with 'jihad' and 'sandooq'. The third of the ideas, namely 'means to an end', remains somewhat elusive. When his Honour asked what counsel meant by the expression, he answered:

Several times in my closing, and I tried to link many of the arguments that I made to this single proposition that Ahmed's words and actions amounted to a state of being, namely, that he was a Muslim and this is what Muslims like him do, this is what they say. And I contrasted that with my analysis of the Crown case which was that his words and actions were a means to an end, namely, a terrorist end.

252 If, and insofar as, there were anything in the point, however, it appears to us that the trial judge covered it sufficiently when he directed the jury as follows:

[Defence counsel] talked about the organisation. He said Ahmed Raad, the other accused and other people were a visible group of mates. They had pride, at times defiance. They went to dars classes. In August 2005 there were tapes put out about dars classes funded by the sandooq. If the western world wasn't swept up in anti-Muslim fervour there would be no question as to whether this was a terrorist organisation. It wasn't.

253 Counsel for Ahmed Raad also submitted that the judge's passing reference to a series of defence exhibits, namely AR 3 to AR 23, was inadequate in that it failed to relate that evidence to the issues, and the law. In our view, that is not correct either. The only real point of the tender of this evidence was to establish that the items relied upon by the Crown were not the only items seized, and that the remainder were innocuous and consistent with the essential thrust of the defence case. The jury would have understood that Ahmed Raad's defence was that his association with the other accused was innocently Muslim, and not culpably related to terrorism.

254 The trial judge made that clear when he directed the jury as follows:

Then [defence counsel] cross-examined the officer and through him, tendered a whole lot of other things which were seized, but hadn't been tendered by the Crown, and again they run from AR 3 to AR 23, and a full list of those is in the exhibit list as well. You can look at that and see what they are. They are all sorts of things from statements and invoice books to bundles of DVDs, notebooks, address books, et cetera.

255 Counsel for Ahmed Raad further complained that, when the trial judge was redirecting the jury on the range of meanings of 'jihad', his Honour failed to direct that the jury would need to consider the way in which the word was used in the half dozen conversations in which his client either used the word, or was present. There is nothing in that point either.

256 After taking exceptions, his Honour gave the jury a comprehensive redirection on the several meanings of 'jihad', which included the following:

Other meanings of jihad might be relevant when you are considering what individual accused meant when they used the term 'jihad'. For example, other meanings, may be relevant to the question of whether any individual accused knew that the organisation of which he is said to have been a member was a terrorist organisation, and those meanings may be relevant to the interpretation of other conversations. It is a matter for you to determine what any accused meant, including Mr Benbrika, when they or he used the term 'jihad' in various instances in various conversations.

In our view, that redirection was more than adequate to meet the point of counsel's complaint.

257 Finally, counsel for Ahmed Raad complained that the trial judge had confined the relevance of religion to the issue of definition of a terrorist act. He had thus failed to put to the jury Ahmed Raad's reliance upon Islamic religion as relevant to the context in which many of the recorded conversations, observed behaviour (such as attending Louth and Eden), and keeping the sandooq and the common library were concerned.

258 Again, we reject that complaint. It is apparent from the way in which his Honour summarised each defence case that the question whether the acts and declarations relied upon by the Crown were explicable on an innocent basis, that being by reference to Islamic religion, was at the forefront of consideration. To select only a few words about the significance of religion being of greatest relevance to the one issue of whether there was a terrorist organisation is not only captious, but it ignores the fact that, in the end, everything in this case was directed to the question whether the Crown had established the existence of a terrorist organisation. In essence, all other issues were peripheral to that question.

259 This ground, in all its various forms, is rejected.

1. FAILURE TO ISOLATE EVIDENCE RELEVANT TO EXISTENCE OF A TERRORIST ORGANISATION, AND EVIDENCE AS TO WHETHER A PARTICULAR APPLICANT WAS A MEMBER

260 At the conclusion of the prosecutor's opening, and again at various other times throughout the trial, senior counsel for Benbrika objected to the way in which the Crown case was being presented. He submitted that it was productive of injustice because of the process it required the jury to undertake. It first invited the jury to conclude the existence of a terrorist organisation on the basis of conversations to which not all applicants had been party. It then invited the jury to determine an accused's membership of the organisation by reference only to conversations, and other events, to which that accused alone was a party.

261 More precisely, the complaint was that, although the Crown eschewed reliance on hearsay to establish an applicant's membership of the alleged organisation, it would be unreal and wholly artificial to suppose that the jury could keep evidence going only to the existence of the organisation separate from the evidence going to membership. In reality, it was said, the vast body of evidence going to the existence of the organisation would, in effect, overwhelm the jury's consideration of individual membership.

262 The trial judge rejected that argument on the basis that the prosecutor had made it absolutely clear to the jury - and his Honour would do so as well in his charge - that an accused's membership of the organisation could only be inferred from the evidence of that accused's own acts and declarations.

263 Counsel for the applicants contended that his Honour had erred in so ruling. They submitted that the method of proof adopted by the Crown had the inevitable tendency to merge the cases of each individual accused, and thus to create a perceptible risk of wrongful conflation of a corporate whole with acts of individual applicants.

264 We do not accept that submission. As the trial judge said, the prosecutor made clear that the Crown relied upon the totality of evidence only to establish the existence of a terrorist organisation, and that an individual applicant's membership of the organisation could only be inferred from so much of the evidence as was admissible against that applicant. So too did the trial judge in his directions to the jury.

265 The point was also repeatedly emphasised by the manner in which his Honour divided up his charge. As previously explained in these reasons for judgment, his Honour dealt first with the evidence which went to establish the existence of a terrorist organisation and which, as he explained to the jury, was admissible for that purpose against all accused. He then dealt separately with the evidence admissible against each accused which went to establishing that accused's membership of the organisation.

266 In the circumstances, we see no reason to suppose that the jury would have consciously, or subconsciously, confused or conflated the two categories of evidence. The fact that four of the accused were found not guilty of being a member of a terrorist organisation, and that the jury were unable to reach a verdict on that count in the case of a fifth accused, provides powerful support for the conclusion that the jury were able to, and did, keep the two categories separate.

11. FAILURE TO EXCLUDE EVIDENCE OF EXECUTION VIDEOS

268 As part of its case, the Crown sought to tender nine videos showing mujahideen in Iraq and Afghanistan.[155] One video showed the killing by shooting of a man named Robert Jacob, seven showed the beheading of hostages in Iraq, and one showed a man named Ryad Olyway being shot in the head at close range.

269 The significance of the videos, apart from their contents, was that they had been found on CDs and computers, as follows:

a) five of the beheading videos were found on a CD seized from Benbrika's home on 8 November 2005;

b) a sixth beheading video was found on a separate CD seized from Benbrika's home on 8 November 2005;

c) a seventh beheading video, of Nich Berg, was found on a CD seized from Kent's[156] home on 8 November 2005;

d) copies of the video showing the shooting of Ryad Olyway were found on a CD seized from Joud's home on 22 June 2005, and also on a computer seized from Merhi's home on 8 November 2005; and

e) copies of the video showing the shooting of Robert Jacob were found on a CD seized from Joud's home on 22 June 2005, and also on a computer seized from Merhi's home on 8 November 2005.

270 The applicants sought to have all of these videos excluded from evidence, in the exercise of discretion, upon the basis that their prejudicial effect outweighed their probative value. The trial judge refused to do so. He held that, despite their

shocking contents, their evidentiary value in the context of the trial far outweighed their capacity to make the trial unfair.

271 Counsel for the applicants contended in this Court that his Honour erred in failing to exclude the videos. They argued that he was in error in his assessment of their probative value, given that there was uncontradicted evidence from a Crown witness in the course of cross-examination that there would be hundreds of young Muslim men who would have such video material in their possession.

272 That argument is rejected. As the Crown submitted, the significance of the video evidence was that it formed part of a larger body of evidence of items seized from several of the applicants. This included bomb-making instructions and terrorism field-craft manuals, war videos, videos of speeches by Osama bin Laden, Al Qaeda publications, and large numbers of jihadi books and articles (in both hard copy and electronic form). Many of the publications provided justifications for killing the kuffar.

273 The TI and LD conversations also contained references to the moral justification for killing the kuffar, praise for terrorist actions around the world, and support for the violent actions of those described as 'mujahideen'. Some of the conversations suggested that the accused were motivated by the violent acts shown in the execution videos.[157] For example, conversations 15[158] and 222[159] involved discussions about having watched particular execution videos. [160]

274 Conversation 53 occurred while a video was being played. Benbrika could be heard saying, in reference to the video, '[a]nd you put it, a knife here, and you open ... Can you see this [roaring sound made] ... See this Kaffer? Yeah this is training. You have to learn it.' In addition, Atik gave evidence that Benbrika played such videos to him, telling him '[t]his is the type of things we should learn'. Atik also said that Joud had said similar things to him.

275 There was, therefore, no question whether the evidence was relevant and admissible as against all of the applicants, as part of the Crown's circumstantial case, to establish the existence and nature of the terrorist organisation. The videos were also relevant and admissible as against those individual applicants from whom the videos were seized. The videos went to proving their possession of those items as a basis from which to infer a particular applicant's state of mind.[161]

276 Further, as the Crown contended, the evidence was highly probative as to both the existence and nature of the organisation, and the common commitment of the applicants to the cause of violent jihad. The videos showed mujahideen giving effect to their desire to kill the kuffar. In association with other evidence, the possession of the videos, and their deployment, went to proving that several of the applicants intended to pursue the cause of violent jihad.

277 There was also direct evidence that Benbrika used the execution videos to train members of the organisation in killing techniques and for the psychological preparation of members for killing (by their desensitisation to the taking of human life). The Crown's case was that such training was part of the organisation's activity of preparing or fostering the doing of a terrorist act. There was evidence, too, that members of the organisation encouraged one another to watch such videos.

278 The Crown contended that such behaviour was part of the forging of bonds amongst members of the organisation, and thereby part of the preparation, or fostering of, the doing of a terrorist act. A further significance of the content of the videos was that it went some way to rebutting defences raised by several of the applicants that they were not serious, or that they were merely engaged in abstract religious, philosophical or political discussions, or in exploring the world around them.

279 Additionally, in the case of Merhi, possession of the videos, coupled with evidence of a link file which showed that the video had been viewed on his computer in September 2005, went to rebut the statutory defence that he had, by that stage, withdrawn from any involvement with terrorism.

280 In our opinion, it does not detract from the probative value of the video evidence that one witness expressed the view that there would be hundreds of young Muslim men in possession of such material. That was just one fact for the jury to take into account in assessing the significance of the video evidence.

281 Counsel for the applicants contended in the alternative that, if the trial judge were correct in holding that the probative value of the video evidence exceeded its prejudicial effect, his Honour nevertheless erred in failing to direct that the jury be provided only with descriptions of the videos, rather than being permitted to view them. In their submission, this was not a case where the evidence had particular probative value in relation to the specific injuries sustained by the victims.[162] Merely providing 'flavour' as to what was said to be happening within the alleged organisation was an insufficient reason for the videos to be played to the jury.

282 We do not accept that submission either. In accordance with the trial judge's directions, only two of the videos were played to the jury. These were edited so as to end before the scenes of the victims being beheaded.[163] The rest of the material was covered by Detective Senior Constable Madden giving evidence in dispassionate terms. He described the sections which had been cut from those two videos, and the contents of the other seven videos which were not played to the jury, and which were not tendered. It does not appear to us that the trial judge was bound to do more than that in order to guard against any unfairly prejudicial effects.

283 Counsel for the applicants further contended that his Honour erred in not considering the admissibility of the video evidence through what they described as 'the prism' of s 398A of the Crimes Act 1958 (Vic).[164] It was submitted that he should have warned the jury that they were not to reason that, merely because an applicant had such videos in his possession, he was likely to be the kind of person who would commit acts of the kind shown in the videos.

284 Those submissions are rejected. Section 398A of the Crimes Act 1958 (Vic) was concerned essentially with propensity evidence. The section therefore focussed upon evidence of uncharged acts, the commission of which makes it more likely that the accused committed the acts with which he is charged. Under that section, such evidence could be admitted, despite its prejudicial effect, if it had strong and cogent probative force beyond mere proof of disposition.[165] In this case, however, the video evidence was not tendered as evidence of uncharged acts suggesting a propensity to

commit offences of the specific nature charged. Rather, that evidence was tendered as direct proof of the actual offences charged.

285 In those circumstances, it would make little sense to direct the jury that they were not to reason that simply because an applicant was in possession of the videos, he must have been the sort of person who would be likely to be a member of a terrorist organisation, and also willing to prepare or foster the doing of a terrorist act. The very point of the Crown's case was that the possession of videos of this kind was itself a mark of the membership of a terrorist organisation, and could be used, along with other evidence, to infer a willingness to engage in just such conduct.

1. LACK OF SPECIFIC PROPENSITY WARNING ABOUT 'GARAGE CONVERSATION'

287 Conversation 40, which took place on 10 September 2004 between Ezzit Raad, Ahmed Raad and Joud (the 'garage conversation') was, as the trial judge said, 'a significant conversation and indeed probably one of the most important of the conversations which the Crown relies on'. Among other things, it concerned the storage of a stolen motor vehicle at Ezzit Raad's premises. It was pertinent to the issue of whether moneys to be sourced from the disposal of parts from the vehicle were intended to be made available to the terrorist organisation. The Crown placed considerable reliance upon the 'garage conversation' right from the outset of its closing address.

288 It is interesting to note that one of the accused, Taha, was admittedly involved in car theft with the Raads and Joud, but he was not involved in the 'garage conservation'. He was acquitted.

289 Ezzit Raad and Ahmed Raad now complain, as they did below, that the trial judge distinguished between them and Taha, to their prejudice. It was submitted that, when summarising Taha's defence, his Honour gave the jury a specific propensity warning. However, when summarising Ezzit Raad's and Ahmed Raad's defences, he gave the jury no such warning.

290 In particular, it was said that, although the trial judge gave a general propensity warning at the outset of his charge, that direction would have been understood as being specifically confined to Benbrika. The jury would not have understood the warning to be addressed to either Ezzit Raad or Ahmed Raad. In addition, having regard to the voluminous nature of the charge with the jury being directed and redirected over the course of some nine days, there was a danger that they would have been left in a state of confusion about that matter.

291 The complaint now made is that, given the fundamental importance of the 'garage conversation' to the Crown case, his Honour erred in failing to direct the jury specifically that, merely because the participants appeared to be involved in car theft, it did not necessarily follow that they were members of a terrorist organisation.

292 In our view that complaint is unfounded. Near to the beginning of the charge, the trial judge gave the jury a detailed propensity direction which was of general application, though it mentioned Benbrika specifically. His Honour said:

If you form the impression that some of the accused on some occasions have been involved in criminal activity, or taken the benefit of criminal activity, and it is not denied in the case particularly of Benbrika so far as travelling on the aeroplane, the false tickets, et cetera, is concerned, you must not reason that because somebody might have been engaged in some form of criminal activity, they are more likely to have committed the crimes which you are considering. That would be quite wrong. It is fundamentally wrong and would be quite wrong. The cases which you are considering are cases in the indictment in this case. You must not reason that because somebody might have done something else that was illegal in one way or another, that, therefore, it is more likely that they will be guilty of this crime or these crimes or some of them or one of them. That is a fundamental error and you must be very careful about it.

293 Later, when dealing with Taha's defence, his Honour paused to give another propensity warning which, like the first, was in general terms. It included the following:

I have said to you already and I should give you this warning again at this time because it's appropriate: In this case there are a number of situations where the accused have been engaged in some sort of illegal activity, and this [car theft] is one of them. It's not disputed here, but there were a number of others right down to taking undersize fish, which one wouldn't have thought is the most heinous crime in the world, but you must be very careful that you don't at any point reason from general criminality, no matter how bad you think it is, to guilt of these crimes. It is an absolutely fundamental, foundational proposition of the criminal law that you must be proved guilty of the crime you are charged with. You can't simply say, "He stole these cars, he shouldn't have done that, so we will convict him of being a member of a terrorist organisation." Firstly, that would be quite inconsistent with a proper reasoning on the evidence, and it's also an absolute prohibition in the criminal law. So just be aware of that, that with him, Taha and of course the others were in the car stealing thing, but there is Bassam Raad and his smoking dope and various other things, they are irrelevant for the purposes of what you are considering.

294 In those circumstances, as we see it, there is not the slightest chance of the jury having been confused about the meaning of those directions. Nor is there any chance that they were left in doubt that they were not to reason from the fact of guilt of other offences, particularly the car theft which was the subject of the 'garage conversation', to a conclusion that the accused were therefore guilty of the offences with which they were charged.

296 At the close of the Crown case, senior counsel for Benbrika submitted that his client had no case to answer on count 12, which alleged an offence under s 101.4(1) of the Code. That section provides as follows:

(a) the person possesses a thing; and

(b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

...

(3) A person commits an offence under sub section (1) or (2) even if the terrorist act does not occur.

...

(5) Subsections (1) and (2) do not apply if the possession of the thing was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

297 On 27 June 2005, police executed a search warrant at Benbrika's home and located there a number of audio cassettes, a handwritten letter addressed to the Ministry of Housing, 15 CDs, and one VHS tape. Among the CDs were two copies of a CD with a handwritten label entitled, 'Supporters of Shariah, Islamic info lectures, Mansura, movies of Shuuhaddah [sic] and heaps more' (the 'Mansura CD'). A copy of the Mansura CD was also found in Joud's possession, and another at the home of Majed Raad.

298 Possession of the Mansura CD was the basis of count 12 against Benbrika, and of count 7 against Joud. The no case submission for Benbrika was that, on the proper construction of s 101.4(1), an offence was only committed if the Crown proved that:

(a) the accused had exclusive possession of the item in question;

(b) at the time the item was possessed, the accused had in contemplation a specific terrorist act (with which the item was connected); and

(c) there was a direct connection between the item and the preparation for a terrorist act.[166]

299 The trial judge rejected all three contentions. On appeal, the first contention was abandoned, but the second and third were maintained. For reasons which follow, his Honour was correct to reject the second contention. As to the third contention, we have concluded - though not for the reason advanced by this

applicant - that his Honour erred in the directions he gave as to the nature of the connection which must be proved.

300 First, however, it is necessary to describe the contents of the Mansura CD.

301 On appeal, the Crown said that the Mansura CD contained:

a vast library of articles and literature designed to inspire people to follow violent jihad, ... and a collection of violent images and videos of conflict, violence and executions designed to incite pursuit of violent jihad.

302 In fact, the Mansura CD contains an archive of documents, divided into six sections. The first two sections are theological in nature. They contain passages from the Koran and a detailed history of 'the Last Prophet'. The third section, entitled 'Zionism', provides a number of videos and documents detailing who the 'Freemasons/Zionists are, what they are about, and how to avoid them'.

303 The fourth section entitled 'Jihad', states in bold red type at the outset:

Jihad (holy fighting in Allah's Cause) is ordained for you (Muslims) though you dislike it, and it may be that you dislike a thing which is good for you and that you like a thing which is bad for you. Allah knows but you do not know.

This section contains a number of documents setting out the duty of Muslims to partake in violent jihad against the kuffar. These documents include, for example, writings on fundamentalism and the Islamic stance on suicide bombings (supportive), and an article written by Osama bin Laden on the 'lies of the Kuffar regarding Muslim youth and jihad'. There are also approximately 20 transcripts of interviews with various people including 'Mujahid commanders', and 13 documents on 'History: Battles and People'. Finally, there are six documents under the heading 'Poems and other good stuff' which glorify war and stress the importance of martyrdom.

304 This section also includes a sub-section entitled 'The Mujahid's Handbook'. The preamble says:

This was taken originally from comprehensive US Army training and combat manuals. It's a great resources [sic] for those of us travelling to the battlefield or for those wanting to learn more on the tricks and methods used by our enemies, so that we may defeat them.

'The Mujahid's Handbook' is divided into four parts; 'Effective Camouflage', 'Sniper Shooting', 'Combat Skills', and 'Survival Skills'. A large volume of material is contained within these chapters.

305 The fifth section contains seven documents relating to 'Judgement Day'. These documents include 'Minor Signs' and 'Major Signs' which indicate when 'Judgement Day' is imminent. The vast majority of the signs relate to aspects of Western culture of which the Islamic faith does not approve. For example, they include the following references:

• 'when women with children come displeased on account of them bearing offspring, and barren women remain happy on account of having no responsibility of offspring';
• 'people will indulge in homosexuality'; and
• 'various wines will be consumed excessively'.

306 The sixth section, entitled 'Media', contains numerous videos depicting battles in Bosnia and Chechnya. There are also a number of beheading videos, and other videos extolling the virtues of various martyrs. There are a number of photographs of battlefields, in addition to a number of photographs of wounds inflicted on civilians by the kuffar. These photographs of wounded civilians were not shown to the jury because of their extremely graphic nature. The section ends with the following:

If you are a man, then get up, find some work, and save up money and then go for the battlefields. If you are a woman, then tell your brother or son to go forth. If you have young boys, or you are expecting, then raise your kids to be Lions of Allah, not some sheep that will become hypocrites, to be devoured by the materialistic Dunya [non-believers] when they grow up.

...

Jihad and the rifle alone. No talks, no negotiations.

Whether the item must be connected with a specific terrorist act

307 Senior counsel for Benbrika submitted that the Crown had failed to establish the necessary connection 'between the thing possessed and a particular terrorist act'. He submitted that the Crown had to show that Benbrika had in mind to make use of the 'thing' in question (in this case, the Mansura CD) for a specific, identified, terrorist act. It was said that the Crown had been unable to show that Benbrika had ever made a decision as to what kind of terrorist act he (or some other member of the group) would carry out, where it would be carried out or when it would be carried out. All the Crown could say, it was submitted, was that Benbrika had a vague and undefined intention to make use of the CD in connection with an as-yet-undetermined activity.

308 The trial judge rejected that contention. His Honour considered that he was bound to follow the decision of the New South Wales Court of Criminal Appeal in Lodhi No 1.[167] There, the Court held that an offence may be committed under the section by a person acting in a preliminary way in preparation for a terrorist act, even where no specific target had yet been selected.

309 In our opinion, his Honour was correct to take that view of the matter. For the reasons we have previously given,[168] he was bound - as we are - to follow the decision in Lodhi No 1.[169]

Whether there must be a 'direct' connection with a terrorist act

310 The principal contention in this Court was that s 101.4(1) required the Crown to establish a direct connection between the possession of the Mansura CD, and the preparation for a terrorist act. As occurred below, senior counsel for Benbrika relied for this proposition upon the recent decision of the English Court of Appeal in R v Zafar.[170] As will become apparent, the reasoning of the Court of Appeal in Zafar[171] is of assistance in the present context, notwithstanding the textual differences between the provisions under consideration.

311 We must start, however, by examining the statutory language used in s 101.4(1) in its context. There are, thus, three elements of the offence under s 101.4(1): possession, connection and knowledge. This ground of appeal concerns the second of the three elements. What has to be proved under paragraph (1)(b) is that the thing possessed:

is connected with preparation for, the engagement of a person in, or assistance in a terrorist act.

In the present case, the Crown had to prove that the Mansura CD was 'connected with preparation for a terrorist act'. We will use this formulation as the basis for the consideration which follows.

312 As the language of paragraph (1)(b) contemplates, 'a terrorist act' for the purposes of this section will include a terrorist act which is being prepared for or is being, or is proposed to be, engaged in. Moreover, on the authority of Lodhi No 1,[172] it will include a terrorist act which is proposed or contemplated even though no decision has been made as to what kind of act will be committed.

313 What does it mean to say that a thing is 'connected with preparation for a terrorist act'? The Crown's submission on the appeal was that this was an objective question. We took this to mean that proof of the requisite connection did not depend on, or require, proof of any person having had a subjective purpose with respect to either the thing possessed or the terrorist act. In this way, so it was said, the Australian provision was materially different from the UK provision considered in Zafar,[173] which focused on possession for a purpose connected with an act of terrorism.[174] Hence, it was contended, the reasoning in Zafar[175] had no application to the construction of the Australian provision.

314 In our view, this submission must be rejected. We do not see how an inanimate object can have an 'objective' connection with an act of terrorism. The proposition could only be valid if the object had some property or characteristic which (independent of any person's subjective intent with respect to the object) connected it with a terrorist act. However, even the quintessential item of terrorist equipment, a bomb, has no such necessary 'objective' connection with a terrorist act. A bomb may be used for one of a number of possible purposes - or for none at all. Whether a bomb possessed by a particular accused is connected with (preparation for) a terrorist act must, necessarily, depend upon the circumstances of his or her possession, and on the surrounding circumstances.

315 What will determine whether the requisite connection exists? It seems to us that, as a matter of ordinary language, a thing cannot be said to be 'connected with preparation for a terrorist act' unless:

(a) a terrorist act is proposed or contemplated (whether or not a decision has been made as to what kind of terrorist act it will be);

(b) some activity in preparation for that terrorist act is under way, or is proposed, or contemplated (whether or not a decision has been made as to what kind of activity that will be) ('preparatory activity'); and

(c) the thing is being used, or is intended to be used, in aid of that preparatory activity.

As we shall explain, the Court of Appeal in Zafar[176] appears to have reached

essentially the same conclusion in relation to what can, for these purposes, be regarded as a cognate statutory provision.

316 We should explain more fully why we think these requirements must be satisfied. As to the requirement that some preparatory activity be under way or in contemplation, we think this follows from the key words 'connected with preparation'. Had Parliament had in mind to criminalise the possession of articles which might be suitable for use should such a preparatory activity be undertaken, then quite different statutory language would have been appropriate. Parliament could, for example, have adopted the language of s 58(1) of the Terrorist Act 2006 (UK), which makes it an offence to collect or record 'information of a kind likely to be useful to a person committing or preparing an act of terrorism.'[177] A provision of that kind would direct attention to the characteristics of the thing possessed, and would pose what is, in essence, a hypothetical question, namely:

If a person was committing or preparing an act of terrorism, would an article of this kind be likely to be useful to that person?

317 The third requirement likewise follows from the words 'connected with preparation'. Plainly, it could not be sufficient simply to establish that preparatory activity was under way or in contemplation. For the thing to be connected with that preparatory activity, it must be shown that it was being used, or was intended by someone (whether or not by the possessor of the article) to be used, in aid of that preparatory activity.

318 An example will illustrate. A person might possess an ingredient for a bomb, or a bomb-making manual, but the item could not be said to be 'connected with preparation for a terrorist act' unless (a) someone was preparing (or contemplating preparing) a terrorist act; and (b) the ingredient or manual was proposed to be used, or was being used, in aid of that preparatory activity. The fact that the item in question was capable of being used, or was suitable for use, in connection with a terrorist act could not be enough.[178] As we have said, the 'connection' which the section requires is not a property of the thing itself. The connection is a function of the intention or purpose which must be shown to have existed (at the time of possession), with respect to both the terrorist act and the use of the thing.

319 The characteristics of the article will, of course, bear very significantly on whether the requisite connection is held to have existed. The more obviously appropriate and adapted to terrorist activity the particular thing is - for example, a suicide bomber's belt - the more readily will the jury be able to conclude, beyond reasonable doubt, that the thing was connected with preparation for a terrorist act and, moreover, that the person in possession knew of that connection. However, for the reasons we have given, merely to identify the thing possessed as the kind of thing which a terrorist would be likely to use will never be sufficient in itself.

320 This analysis is, we think, reinforced by the terms of s 101.4(5). The effect of this provision is that, even where the elements of the possession offence are established, no offence is committed 'if the possession of the thing was not intended to facilitate ... a terrorist act'. In other words, the possessor of the thing - who (ex hypothesi) knew that the thing was connected with a terrorist act - can escape criminal liability if his possession of it was not intended to facilitate such an act.[179]

321 For example, the defendant may have had in his possession a quantity of fertiliser which, to his knowledge, was intended to be used by others in preparing a bomb for use in an act of terrorism which they had in contemplation. The exculpatory circumstance which would engage s 101.4(5) is not some objective feature of the fertiliser but the absence of a subjective purpose linking the defendant's possession of it with the preparation for the terrorist act. Thus, the defendant might lead evidence that it was simply an accident of circumstances that he had ended up in possession of the fertiliser, and that his possession of it was not for any purpose (such as concealment or strategic location) associated with the terrorist activity.

322 On this analysis, two conditions had to be satisfied before the Mansura CD could be proved to have been 'connected with preparation for a terrorist act'. First, it had to be shown that, at the time of the defendant's possession, someone (whether or not the defendant) was preparing (or contemplating preparing) for a proposed or contemplated terrorist act. Secondly, it had to be shown that - once again at the time of the defendant's possession - someone (whether or not the defendant) intended that the CD be used in, or in aid of, that preparatory activity.

323 As we have sought to explain, this is the only interpretation which seems to make sense of the actual words which Parliament used, in the context in which they appear. It is neither a reading down of the provision nor a reading in of words. We have sought simply to give meaning to the phrase 'connected with preparation for a terrorist act'. This analysis reveals why it is erroneous to construe the words 'connected with' in isolation from their context, and also why it is erroneous to ask whether the connection must be shown to have been a 'direct' one. The latter point is reinforced by an examination of what Court of Appeal said in Zafar.[180]

324 Before turning to Zafar,[181] we should point out that there are some 'things' which might satisfy the two conditions we have identified but which might nevertheless be thought to fall outside the intended scope of s 101.4(1). This reservation is prompted by the example given in Zafar,[182] of a cheque book. There, the possessor of the cheque book intends to use it to make payment for air tickets to transport others for the purposes of preparatory activity (of which he is aware) for an act of terrorism. On these facts, both of the necessary conditions for the cheque book to be 'connected with preparation for a terrorist act' might well be satisfied. It could be argued, however, that what Parliament had in mind when it spoke of the need for the thing to be 'connected with', relevantly, preparation for a terrorist act was a 'real and substantial connection', and not one that was peripheral, as the possession of the cheque book would be.[183] This is not to adopt a test of 'directness'. The question is not, as the English cases suggest, whether there is a direct connection between the thing and the act of preparation. It is rather whether the connection, as manifested in all the circumstances of the case, is sufficiently tangible to fall, properly and sensibly, within the meaning of the term 'connected with'. The possession of innocuous and everyday items, such as a cheque book, even one intended to be used, as one of its purposes, for a nefarious end, is not sufficient, in our view, to meet the statutory requirement. It goes without saying that the Mansura CD does not fall within this category of innocuous objects which may be capable of being used in preparation for a terrorist act, but would normally be regarded as having only the most tenuous of links with such preparation. That is not, however, a question which we need consider further.

325 In Zafar,[184] the Court had to construe s 57 of the Terrorism Act 2000 (UK). That section provided:

(1) A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.

(2) It is a defence for a person charged with an offence under this section to prove that his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism.[185]

326 We would point out immediately three important differences, and one important similarity, between the UK provision and s 101.4 of the Code. The differences are, first, that the UK provision explicitly invokes the element of purpose; secondly, that the purpose in question is the purpose of the defendant's possession of the item; and thirdly, that the prosecution need only establish a reasonable suspicion that the defendant's possession is for a terrorist purpose. The similarity is that the exculpatory provision, s 57(2), is in substance the same as s 101.4(5). That is, the defendant can escape liability if his possession of the article was innocuous, that is, was not for a terrorist purpose.[186]

327 The articles possessed in Zafar[187] included documents, computer disks, and computer hard drives on which material was electronically stored. The material consisted largely of political and religious tracts. The defence accepted that it was 'propaganda or ideological material', and that much of it was extremist. The material also included communications between the defendants and others which, the Crown alleged, showed a settled plan under which they would travel to Pakistan to receive training, and then go on to commit terrorist acts in Afghanistan.

328 The Crown alleged that each defendant intended to use the material in his possession to 'incite himself and his fellow defendants to commit such acts of terrorism'.[188] The defendants submitted that there was no case to answer since there was no 'direct connection' between the articles possessed, and any intended act of

terrorism. The trial judge rejected that submission. The defendants were convicted, and appealed.

329 The Court of Appeal (Lord Phillips of Worth Matravers CJ, Owen and Bean JJ) considered the extent of the connection required by s 57 for something to be regarded as 'connected with' the instigation of an act of terrorism. The Court concluded that the phrase 'for a purpose in connection with' was 'so imprecise as to give rise to uncertainty unless defined in a matter that constrains it.' The reasoning was as follows:

We can exemplify the problem in this way. It was the prosecution case that the defendants were party to a plan that involved the following three stages: (a) travelling to Pakistan; (b) training in Pakistan; (c) fighting against the government in Afghanistan. Only the third stage would amount to "acts of terrorism". One could, however, say that travelling to Pakistan and training were "connected with the commission of acts of terrorism". We asked [senior counsel for the prosecution] whether possession of an air ticket for travel to Pakistan would constitute "possession of an article for a purpose connected with the commission of acts of terrorism". He answered that it would. What then, we asked, of the cheque book that was to be used to pay for the air ticket? [Senior counsel for the prosecution] conceded that we were getting into difficult territory. The reality is that the phrase "for a purpose in connection with" is so imprecise as to give rise to uncertainty unless defined in a manner that constrains it.[189]

We have concluded that, if section 57 is to have the certainty of meaning that the law requires, it must be interpreted in a way that requires a direct connection between the object possessed and the act of terrorism. The section should be interpreted as if it reads: "A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that he intends it to be used for the purpose of the commission, preparation or instigation of an act of terrorism."[190]

331 As this reformulation of the statutory language makes clear, what the Court viewed as necessary to constitute the 'direct connection between the object possessed and the act of terrorism' was the defendant's purpose in possessing the object. That is, for the requisite connection to exist, there must be a reasonable suspicion that the defendant intended that the article be used for the purpose of an act of terrorism. Intention was relevant even where the object possessed was a bomb, as the Court had earlier explained:

An article that is intended to be incorporated in a bomb, or used as an ingredient of explosives designed for an act of terrorism, will be held for the purpose of bringing about the act of terrorism. There is a direct and obvious connection between the article and the intended act of terrorism. The purpose for which the article is held will plainly fall within section 57.[191]

332 In just the same way, the Court of Appeal said that the touchstone for determining whether possession of extremist literature constituted an offence was the purpose for which it was possessed:

Literature may be stored in a book on a bookshelf, or on a computer drive, without any intention on the part of the possessor to make any future use of it at all. Alternatively it may be stored for a number of different purposes: (i) to be read by the possessor for his own enjoyment or education or inspiration; (ii) to be transferred by the possessor to others for their enjoyment or education or inspiration; (iii) to be transferred by the possessor to others by way of instruction or encouragement to act in a particular way; (iv) to provide information or instruction to the possessor or to others as to how to carry out a particular activity.[192]

333 Properly understood, therefore, Zafar[193] stands for the proposition that there will have been no sufficient connection between the article possessed and a terrorist act unless (there is a reasonable suspicion that) the defendant had the necessary purpose with respect to the article. It is that purpose which (directly) connects the article with the terrorist act. Zafar[194] is thus a decision about purpose, rather than about 'direct connection'.[195]

334 So, too, with s 101.4. The question is not whether the connection has to be (and be proved to be) a 'direct' connection. The question is whether the requisite purpose existed (at the relevant time) with respect to the thing possessed, so as to connect it in the relevant sense with a terrorist act.

335 In the matter before this Court, the trial judge gave the following direction to the jury regarding the 'connection' element of this count:

The second thing that the Crown has to prove is that the [Mansura] compact disc was connected with preparation for a terrorist act.

In the context of this case, what that means is that the compact disc had some sort of connection to, or relationship with, a terrorist act, and, in the circumstances of this case, that means no more than that if you were satisfied that the organisation of which Benbrika was a member, if you found that he was a member, was engaged in fostering or preparing a terrorist act, that terrorist act, whatever it was, would be sufficient to found that connection if you thought that something on the CD was connected with a terrorist act. "Connected with" is a very wide phrase. It does not mean connected with in any particular way. There just has to be some connection between the thing and a terrorist act.[196]

336 This direction reflected what his Honour had earlier said, when rejecting the no case submission advanced on behalf of Benbrika. Counsel had argued that, by analogy with Zafar,[197] s 101.4(1) required proof of a 'direct connection'. His Honour said:

the drafting of s 57 ... is far removed from the Australian provision, the principal difference being that here no specific act of terrorism needs to be alleged or proved.[198]

This results in there being no reason to give any meaning to the words 'connected with' beyond their ordinary meaning as was done in Lodhi [No 1] by the New South Wales Court of Criminal Appeal. It would be difficult to imagine words of wider import as they are used in the Australian provision. There is no reason to give them a narrower construction than that which the New South Wales Court of Appeal accepted as arising from the nature of the document possessed by Lodhi, namely a document of an instructional nature for the making of explosives and the like.

The CD in this case contains similar, if more extensive, material. It will be a matter for the jury to determine whether the Crown has proved beyond reasonable doubt that this material is connected with a terrorist act and that Benbrika knew of the connection, in all the circumstances which they consider the evidence discloses.[199]

337 It follows from what we have already said that this direction was not adequate to define the jury's task. His Honour failed to identify what had to be proved for the requisite connection to be established.

338 As pointed out earlier, for a relevant connection to have existed, there had to be a terrorist act for which preparatory activity was under way or in contemplation. Otherwise, there was no 'terrorist act' with which the thing in question could be shown to have had a connection. His Honour addressed this point when he said to the jury:

if you were satisfied that the organisation of which Benbrika was a member ... was engaged in fostering or preparing a terrorist act, that terrorist act, whatever it was, would be sufficient to found that connection ...

339 However, his Honour then failed to direct the jury as to how to determine whether the Mansura CD had the requisite connection with that preparatory activity. Doubtless reflecting the submissions advanced on both sides, his Honour construed the phrase 'connected with' in isolation from its legislative context, which led him to tell the jury that it was

a very wide phrase. It does not mean connected with in any particular way. There just has to be some connection between the thing and a terrorist act.

340 For the reasons we have given, and with respect, this was not a correct statement. Used in s 101.4(1), the phrase does have a particular meaning. It means that the thing must be shown to have been 'connected with preparation for a terrorist act' by virtue of some person's having had the purpose of using the thing in, or in aid of, preparation for the terrorist act.

341 This interpretation of the phrase 'in connection with' accords generally with the approach to that expression favoured in a number of the authorities. Recently, in Nolan v MBF Investments Pty Ltd,[200] Vickery J considered the meaning of that phrase in the context of a property dispute. He referred to the following observation of Giles CJ CommD in Elkateb v Lawindi:[201]

The phrase "in connection with" has on many occasions been said to be of considerable width, satisfied by a link or an association (Commissioner for Superannuation v Miller [1985] FCA 445; (1985) 8 FCR 153) or a relationship (Our Town FM Pty Ltd v Australian Broadcasting Tribunal [No 1] [1987] FCA 301; (1987) 16 FCR 465; Drayton v Martin [1996] FCA 1504; (1996) 137 ALR 145) and summed-up in the phrase "having to do with": see the same cases and Nanaimo Community Hotel Ltd v Board of Referees [1945] 3 DLR 225. As with the phrase "in relation to", no doubt the context or the purpose may require that the link, association or relationship be of a particular kind, sometimes described as an appropriate or relevant relationship (Perlman v Perlman [1984] HCA 4; (1984) 155 CLR 474; R v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185 and O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1989) 169 CLR 356), but it should not be read down unless there be compelling reason to do so (Fountain v Alexander (1982) 150 CLR 615).[202]

342 Vickery J also referred to the decision of the Full Federal Court in Health Insurance Commission v Freeman[203] where it was said:

The words "in connection with" have been accepted as capable of describing a spectrum of relationships between things, one of which is bound up with or involved in another: see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288. However, as was pointed out by Sackville J in Taciak v Commission of Australian Federal Police (1995) 59 FCR 285 at 295, the question that remains in a particular case is what kind of relationship will suffice to establish the connection contemplated by the statute. That requires a "value judgment about the range of the statute": see Pozzolanic (at 289).[204]

343 The language of the trial judge's direction in the present case leaves open the real possibility that the jury reasoned to guilt without directing any attention to whether the requisite connection had been established. The content of the Mansura CD was such that, in the absence of an appropriate direction, it was but a short step from a conclusion that a terrorist act was being prepared to a conclusion that there was 'some connection' between the Mansura CD and that preparatory activity.

344 It follows that the conviction on count 12 must be set aside. Ordinarily, this would mean an order for a new trial on that count. The ground goes further, however, and asserts that, having quashed the conviction, this Court should direct that a verdict of acquittal be entered. In order to assess that contention, we must consider whether the evidence before the jury could have established - and hence on a retrial could establish - beyond reasonable doubt that the Mansura CD was 'connected with' the organisation's preparation of a terrorist act, and that Benbrika knew of that connection. That consideration can conveniently be undertaken as we address the question raised by the next ground, which contends that Benbrika's conviction on this count was unsafe and unsatisfactory.

345 The same ground is relied on by Joud who, as with Benbrika, was convicted of an offence under s 101.4(1) arising out of his possession of the Mansura CD (count 8).

Joud was also convicted of an offence under s 101.4(1) in relation to his possession of the Manuals CD (count 7).

1. VERDICT IN RELATION TO COUNT 12 IS UNREASONABLE OR CANNOT BE SUPPORTED

346 We have elsewhere concluded that it was open to the jury to be satisfied beyond reasonable doubt that Benbrika was a member of an organisation engaged in preparation for the carrying out of a terrorist act. The relevant question under s 101.4(1), therefore, was whether the evidence enabled the jury to conclude beyond reasonable doubt that, when Benbrika was in possession of the Mansura CD:

(a) the contents of the CD were used, or were intended (whether by Benbrika or by some other person) to be used in, or in aid of, that preparatory activity; and

347 In addressing those questions, the jury should have had regard to:

• the circumstances of Benbrika's possession of the CD, including (for example) any evidence of its concealment and/or of its distribution to others;
• the nature of the contents of the CD and their relevance to the preparatory activity being undertaken;
• any statements made about the actual or intended use of the content of the CD, or otherwise about the reason for Benbrika's possession of it; and
• any statements indicating Benbrika's awareness of that actual or intended use.

348 Both at trial and on appeal, the submission for the Crown focused heavily on the content of the Mansura CD, which we have described earlier in these reasons. As we have said already, the fact that material on the CD was of a kind which could be used to assist in the preparation of a terrorist act, or to incite persons to participate in the carrying out of a terrorist act, could not be sufficient by itself to establish the requisite connection. At the same time, the nature of the material, and its suitability for use in the preparatory activity, bears directly on the strength of the inference available as to its intended use and the purpose of its possession. So too will it be relevant whether, and to what extent, a lawful explanation for possession is available.[205]

349 The evidence linking Benbrika to any use that might have been made of the Mansura CD in preparation for a terrorist act was essentially as follows. The Crown submitted that the fact that Benbrika was in possession of two copies of the Mansura CD supported an inference that he intended to make at least one copy available to others.

350 The surrounding evidence upon which the Crown relied to establish the relevant connection included a number of conversations between Benbrika and others where reference was said to have been made to the content of the Mansura CD in a positive and encouraging way.

351 For example, the Crown referred to conversation 215. That conversation took place on 3 January 2005, between Benbrika, Joud and Sayadi. During this conversation, Sayadi expressed concern about some material stored on Joud's computer. There was some discussion between Joud and Sayadi as to whether it would be safer to store the material on a CD which they could hide. The conversation continues:

BB: What are you putting in the computer?

FS: No, no, it's not me who puts, Sheikh. Have a look at what they put on it. Look at all that. We don't need this in the computer of the Jama'ah look at all this

AJ: Survival, brother.

BB: What's this

FS: Survival brother? You this is what you put for survival, brother?

AJ: It is

FS: Snipers and stuff like this you put it in it. Come on, man ...

...

AJ: You got worse things on your computer ...

BB: [inaudible]

FS: I know I know, brother. I know I know

AJ: Then why don't you put em on disk

...

FS: ... I could say I picked it up through the Internet. Things things, brother

AJ: There's nothing, brother, there's nothing like this

352 The Crown also relied upon conversation 427. That conversation took place on 5 August 2005, between Benbrika and Majed Raad. During that conversation Benbrika showed Majed Raad certain material on a computer. They also discussed making copies of that material. In particular, Benbrika said, 'gonna give every brother, every [inaudible] I'm gonna make him copy'.

353 It was the Crown's contention that references throughout conversation 427, to titles such as 'handbook', 'combat', 'sniper', 'camouflage' and 'survival', allowed an inference to be drawn that Benbrika was showing Majed Raad the Mansura CD. As stated above, 'The Mujahid's Handbook' contained on the Mansura CD is divided into four sub-sections: 'Effective Camouflage', 'Sniper Shooting', 'Combat Skills', and 'Survival Skills'.

354 The transcript of the conversation reads as follows:

BB: ... Have a look.

MR: [Inaudible]

BB: Everything you need. For example Taliban. See Taliban now, you read this.

MR: Yeah.

BB: See imagine this just, just this one.

...

BB: ... they cover everything you ever need.

...

BB: It's something you will never find, it's something there that you read about the Moujahed.

MR: Praise is to Allah!

BB: Everything everything, you will not miss nothing.

MR: [Inaudible]

BB: Handbook, see got camouflage. Survival.

MR: Praise is to Allah.

BB: Combat. Sniper. Sniper, lesson for the sniper. [laughs] Everything. [Inaudible] everything.

[Sound of computer mouse]

BB: Except, adjusting the [inaudible]. Fifteen weeks.

MR: Praise is to Allah.

BB: Camouflage, it's one of the basic rules of war. Combat, survival.

MR: [Inaudible].

BB: Something you'll never find, it's everything.

MR: Mm.

...

MR: Mm. It means the most beneficial for you.

BB: Yeah that's right this is every Moujahed has to know.

MR: All of it?

BB: Everything you need, man. There's plenty.

355 Later, while they appear to be copying the CD, the conversation continues:

MR: What should we do now? I mean, I mean, I mean do we study, do we do -

BB: [Inaudible]. Read this...

MR: Mmm.

BB: ... and [inaudible] you can. Read, read, on the computers is everything of this in English [inaudible], and the DVD player with that. [Inaudible] read it read it, anything you need. And [inaudible] it's lessons and everything [inaudible]. You know, I mean don't [inaudible] this, it's zero for you, what do you do. Especially this. Try to get an MP3.

BB: But, do you understand? For example let, let's see. Just an example. Here's something that's been gathered by the brothers, a letter.

MR: [Inaudible] Sheikh.

BB: [Inaudible] for example, he's in prison and it's in English for you you will never find it. See.

...

BB: [Inaudible]. But [inaudible] I mean [inaudible] to, to hide it just...

MR: Yeah. If they find this one that's it.

BB: I mean.

MR: [Inaudible] This one, if they find it with anyone -

BB: [Inaudible]

MR: A lot. Straightaway, straightaway, straightaway, straightaway.

BB: Just watch yourself. I had forgotten it [inaudible].

357 As we have already indicated, his Honour's misdirection as to the meaning of the phrase 'is connected with' means that, as against Benbrika, in relation to count 12, the trial miscarried. It was submitted that there should be a verdict of acquittal entered on that count. Contrary to that submission, we consider that there was ample evidence of Benbrika having possessed the Mansura CD, that the CD was itself 'connected with' preparation for a terrorist act, and that Benbrika knew of that connection. That evidence stems principally from the various recorded conversations to which we have referred, some of which we have set out above.

358 Accordingly, this is not a case in which it is appropriate to enter a verdict of acquittal. Rather, we will direct, in accordance with s 568(2) of the Crimes Act 1958 (Vic), that a new trial on count 12 be had. Whether or not such a trial eventuates will of course be a matter for the Commonwealth Director of Public Prosecutions.

1. JOUD - VERDICTS IN RELATION TO POSSESSION COUNTS (7 AND 8) - WHETHER UNREASONABLE OR CANNOT BE SUPPORTED - ABSENCE OF EVIDENCE OF CONNECTION

359 Joud, like Benbrika, was found in possession of the Mansura CD. He was also found in possession of the Manuals CD. He was charged with, and convicted on, counts 7 and 8, each being a 'possession' count under s 101.4(1) of the Code.

360 At the conclusion of the Crown case, counsel for Joud submitted that his client had no case to answer in relation to either of the two possession counts.

361 We have already provided a description of the contents of the Mansura CD. It may now be useful to set out as well the contents of the Manuals CD. That CD contains six folders.

362 Folder 1, entitled 'White Resistance Manual', contains the bulk of the material on the Manuals CD. The purpose of the 'White Resistance Manual' is said to be to provide a comprehensive documentary and visual guide for 'White Resistance Fighters' in their 'revolutionary struggle' against 'non-Whites'. It is clearly produced by white supremacists, and appears to have been obtained from an unknown source. It is largely anti-Semitic, although also targeted at other 'non-White' racial groups.

363 The 'White Resistance Manual' includes documents on weaponry, ammunition, acquiring funds to sustain a large-scale guerrilla campaign, arson as a method of terrorist attack, mines and booby traps, control of information, explosives, improvised explosive devices, incendiaries, organisation structuring, poisons, sabotage, selective assassinations, submachine guns, and use of threats, harassment and vandalism in order to have a psychological impact on the 'enemy'. There is also a detailed explanation of police investigations, including fingerprint evidence, bodily fluids, trace elements, tool marks, eye witnesses, video surveillance, firearm evidence, bomb investigations, forensic computer evidence, handwriting evidence, toxicology and criminal profiling.

364 Folder 2, entitled 'Car Bomb Recognition Guide', contains a document which 'has been prepared for law enforcement officers, military officers, and counterterrorist specialists to assist in the recognition and identification of

improvised explosive devices and booby traps emplaced in and around automobiles'.

365 Folder 3, entitled 'The Terrorist's Handbook', contains a large document which details various methods currently employed by terrorists throughout the world. The document states that its purpose is 'to show the many techniques and methods used by those people in this and other countries who employ terror as a means to political and social goals'. Various chapters include buying explosives and propellants, preparation of chemicals, explosive recipes, ignition devices, delays, projectile weapons, and lists of suppliers.

366 Folder 4, entitled 'Vortex Cookbook', provides approximately 50 recipes for the manufacture of explosives. These explosives can generally be made using household items.

367 Folder 5, entitled 'CIA Manual', contains a 40 page document also detailing explosive making recipes. The document is described as providing 'CIA Field Expedient Methods for Explosives Preparations'.

368 Folder 6, entitled 'Plastic Hydrogen Bomb', contains a link to a website produced by a body known as the 'Islamic Media Center'. This website provides detailed instructions, and photos, on how to assemble and operate what is described as a 'plastic hydrogen bomb'. This somewhat alarming description is, however, quite misleading. The item to be assembled is, in truth, little more than a 'toy' used to teach students the principles of electrochemistry. It is manufactured from easily obtainable products.

'Connected with preparation for a terrorist act'

369 The trial judge said that Joud's no case submission

came down in the final analysis to a submission that the connection required to be proved by the Crown by sub-s 101.4(1)(b) had to be with a particular terrorist act. There had to be a plan. As he put it, "It's got to be connected to

something, and a terrorist act means something that is tangible, actual, real in fact, and that is not here."[206]

That contention was rightly rejected, for reasons given earlier.

370 Like Benbrika's, Joud's no case submission also relied on the decision of the English Court of Appeal in Zafar[207] for the proposition that there needed to be a 'direct connection' with a terrorist act. That contention, which the trial judge rejected, was developed more fully on the appeal. Although we, too, have rejected the 'direct connection' formulation, we have concluded for reasons already given that the directions which the trial judge gave regarding the requirement of connection with preparation for a terrorist act were inadequate. Joud's conviction on both counts must therefore be set aside.

371 In considering whether Joud should be retried on these counts (or either of them), or whether instead there should be a verdict of acquittal, we turn to the issues raised by this ground of appeal, namely, whether it was reasonably open to the jury on the evidence led by the Crown to be satisfied of Joud's guilt on one or both of these counts.

372 Joud's submission in this Court concentrated on the content of the CDs found in Joud's possession. Thus, counsel drew attention to evidence elicited in cross-examination from Mr John Kelleher, an explosives specialist called by the Crown, that the material found on the Manuals CD was freely available on the internet. He submitted, accordingly, that possession of that material could hardly be said to have been 'connected with preparation for a terrorist act'.

373 In relation to the Mansura CD, counsel submitted that much of what it contained could not be regarded as jihad material[208] and, accordingly, could not sensibly be viewed as 'connected with the preparation for a terrorist act'. More generally, it was submitted that the sheer volume of material contained on the two CDs showed that they had plainly been compiled in a random fashion, and not with any specific purpose in mind.

374 Next, it was submitted that the actions of the police, in having returned the two CDs to Joud after the initial seizure showed that they did not regard the items as having been 'connected with preparation for a terrorist act'. Moreover, it was said that the fact that Joud had retained both CDs after they had been returned to him, rather than disposing of them, strongly suggested that even if there was a connection of the kind referred to in s 101.4(1)(b), he had no knowledge of it.

375 It is not in doubt that the two CDs the subject of counts 7 and 8 contain material of an utterly objectionable, extremist nature. Much of that material cannot, in any sensible way, be described as theological or philosophical. A good deal of it can be characterised as 'propaganda'. Undoubtedly, such material is capable of being used 'in connection with the preparation for a terrorist act'.

376 For reasons already given, however, the question for this Court is whether the evidence established beyond reasonable doubt that the material was, in fact, 'connected with' such preparation. For Joud to be found guilty of these possession offences, it had to be proved that, at the time he possessed the CDs:

(a) material from the CDs was being used, or was intended to be used, in aid of preparatory activity for a (proposed or contemplated) terrorist act; and

377 The Crown thus had to establish that Joud's possession of the two CDs was 'connected with' preparation for a terrorist act as at 17 September 2004, which was the date of the alleged commission of the offences. Counsel for Joud submitted that anything that occurred after that date was irrelevant so far as these offences were concerned. It was further submitted that, as at that critical date, there was insufficient evidence available to prove the relevant connection.

378 That submission clearly goes too far. Of course, the critical date so far as proof of the essential elements are concerned is the date alleged in each count in the indictment. Nevertheless, evidence of what transpired after that date can shed light upon the purpose for which the items were possessed on the day in question. This is simply a form of circumstantial evidence, sometimes described as 'retrospectant evidence'.

379 Counsel for Joud also relied on evidence given by Mr Samir Mohtadi, another witness called by the Crown. Mr Mohtadi was the Director of the Islamic Information and Services Network of Australasia. Under cross-examination, he said that many young Muslims and people, including himself, looked at and read material like that contained on these CDs and watched, for example, beheading videos. He said he had them himself.

380 It was submitted that, in light of all of the evidence, the Crown had not excluded the possibility that Joud had been in possession of the two CDs merely as a matter of curiosity, or perhaps through some form of morbid interest. It was submitted that, in either event, the requisite connection could not have been established, even without recourse to the defence under s 101.4(5).

381 The Crown submitted in reply that the very nature of what was contained on the two CDs, when considered in light of the surrounding evidence, demonstrated a clear connection with preparation for a terrorist act. Uncontradicted evidence had been given at the trial that Joud had accessed at least some of the material contained on the two CDs on his laptop. For example, on 7 August 2004, the Mansura CD had been inserted into the laptop and, on the same day, the folder containing the 'Mujahid's Handbook' had been opened. Several weeks later, on 31 August 2004, the 'CIA Manual' found on the Manuals CD had been accessed.

382 The surrounding evidence upon which the Crown relied to establish the relevant connection included a number of conversations between Joud and others, where reference was said to have been made to the content of the Mansura CD in a positive and encouraging way. For example, the Crown referred to conversation 40 (the 'garage conversation'). As noted earlier,[209] that conversation took place on 10 September 2004, between Ezzit Raad, Ahmed Raad and Joud, in Ezzit Raad's garage. It concerned Ezzit Raad's disquiet at the storage of a stolen vehicle in his garage. The discussion was as follows:

AJ: ... How do you think the brothers in Chechnya. And how do you think they gather? They go steal just like this. You don't see, you only see those nice [inaudible] macho videos where they're all holding AKs and all were shooting. You don't see what they do behind.

ER: I've seen it. I've seen it.

AJ: They don't do it every single day man. They do this. They take. You see all those nice eh, hell for the Russians. It's not, it's not the nice pretty picture you see all the time.

383 This conversation did not refer, in terms, to the Chechnya videos contained on the Mansura CD. In fact, there was no evidence that Joud had accessed those videos in particular, though the timing of the discussion, about a month after the Mansura CD had been inserted into his laptop, gave rise to a suspicion that this might be so.

384 The Crown also relied upon conversation 65, which took place between Joud and Benbrika on 27 September 2004, as providing context to Joud's possession of the two CDs. During the course of that conversation, Joud urged Benbrika to 'prepare something'.

385 Other conversations were said to provide an insight into how Joud, and the other accused, regarded the material on the Mansura CD, particularly after it had been seized by the police. In conversation 50, on 18 September 2004 (the day after the alleged offending on counts 7 and 8), Joud engaged in discussions with Benbrika and Taha. The following exchange took place:

HT: Allah knows best when they check your computer tell me what you gunna hit you with too.

AJ: Oh they're gunna hit me hard, 'cos there's bad stuff on it.

HT: Altogether or separate.

AJ: No it's all over the place but it's hard to find.

HT: No, they'll find it don't worry.

AJ: Yeah they'll find it.

...

BB: [to HT]... if there is nothing in the computer will they return it to you?

HT: Yeah yeah of course.

...

AJ: Oh we'll never get that one back. [Inaudible] the one, um, the one Fadl got. 'Cos he goes oh we're gonna do a background check if it's stolen, anything stolen you're not getting it back.

386 In conversation 215, on 3 January 2005, Joud had the following discussion with Benbrika and Sayadi:

FS: You got you got caught with this shit man and then you put it back on the comp man.

BB: No, no. I don't want something in the bag.

AJ: Which stuff

FS: This stuff here man Islamist stuff

AJ: That's allowed, brother.

FS: Noth nothing's allowed [inaudible] man

AJ: [Inaudible] they can't they can't

...

AJ: It's a survival [inaudible]

FS: [Inaudible] I swear to Allah, I don't understand what's so hard (inaudible) a CD a diskette [inaudible]

AJ: Alright because same, same thing, brother, you put it in the lap top they can get it

...

FS: I know but hiding it somewhere and [inaudible]

AJ: It doesn't matter, brother. When you put it in the computer and bring it on this that's it its imp - imprinted on the cop

...

AJ: Its makes a log.

...

AJ: ... it's called ... the log ... pattern

...

AJ: Of of the computer usage brother they've got software they put it on they can tell you each key you press ...

...

BB: What are you putting in the computer?

FS: No, no, it's not me who puts, Sheikh. Have a look at what they put on it. Look at all that. We don't need this in the computer of the Jama'ah look at all this

AJ: Survival, brother.

BB: What's this

FS: Survival brother? You this is what you put for survival, brother?

AJ: It is

FS: Snipers and stuff like this you put it in it. Come on, man. Praise is to Allah.

...

AJ: You got worse things on your computer, I swear to Allah.

...

FS: I know I know, brother. I know I know

AJ: Then why don't you put em on disk

...

FS: [Inaudible] the Fatawa [Islamic religious decrees] I could say I picked it up through the Internet. Things things, brother

AJ: There's nothing, brother, there's nothing like this

...

FS: You opened it up and showed me how

AJ: Brother no no I didn't show you I showed you this.

387 Mr Kelleher, the explosives specialist called by the Crown, had examined the bomb-making manuals contained on the two CDs. He concluded that the bomb-making recipes on the Manuals CD could, if followed, produce explosives.

388 For reasons given earlier, possession of the two CDs, standing alone, could not give rise to an offence under s 101.4(1). As we understood the Crown's submissions, that proposition was accepted. Likewise, the possession of material extolling violent jihad does not, of itself, establish a connection with preparation for a terrorist act. It is not incumbent upon a person who happens to be in possession of such material to bring himself within the defence set out in s 104.1(5). It is for the Crown to establish that the possession of that material, in light of all the circumstances, is 'connected with' such preparation. It is only after that condition is met that the evidentiary burden provided for in the 'defence' arises.

389 As we have said, some of the material on the CDs was clearly capable of being used in preparation for a terrorist act. We refer, in particular, to the explosives manuals and the violent jihadist propaganda intended to incite hatred against the kuffar. No doubt that material was designed, in part, to encourage others to engage in terrorist acts. However, s 101.4(1)(c) provides, as an element of the possession offence, that the person in possession of a thing 'connected with' preparation for a terrorist act must 'know' of that connection. It is difficult to see how a person can 'know' of such a connection unless the thing possessed is connected sufficiently closely to what is, in essence, the impugned purpose. The more tenuous the link, the more difficult it will be to infer the requisite knowledge.

390 Whether, in any given case, the relevant connection - and knowledge - can be inferred must inevitably involve questions of fact and degree. In some situations, possession of material such as was contained on the two CDs in Joud's possession will, when viewed in the light of the evidence as a whole, give rise to an offence under s 101.4(1). For example, if there had been evidence that Joud had played the CDs, or either of them, to any of the other accused, and that he had done so with a view to furthering the proscribed object, namely, preparation for a terrorist act, we would have had no hesitation in ordering a retrial. There was no such evidence.

391 There was nothing in any of the recorded conversations, or otherwise, to indicate that Joud had acquired the Manuals CD in order to learn bomb-making techniques, or to teach those techniques to others. Had there been any such evidence, that too would have been sufficient to warrant an order for retrial, at least on the count relating to the Manuals CD. The same conclusion would have followed had there been any evidence, in any of the recorded conversations or otherwise, that Joud had acquired the Mansura CD in order to 'desensitise' himself, or others, to the brutality of violence towards the kuffar, as the Crown contended. But, once again, there was no such evidence.

392 It follows, in our view, that, as against Joud, the evidence did not establish, and was not capable of establishing, beyond reasonable doubt that either of the CDs was 'connected with' preparation for a terrorist act within the meaning of s 101.4(1)(b). It follows that there should be judgment and verdicts of acquittal on counts 7 and 8.

393 The witness Atik was asked, in examination-in-chief, the following:

COUNSEL: Mr Atik, I want to ask you about a different topic now and I want to ask you about some conversations that you may have had with Mr Aimen Joud. Did you have any discussion with Mr Joud about you obtaining firearms?---Yes.

Could you tell us how that arose?---Aimen asked me if I could get any firearms.

What did he tell you that he wanted?---He told me - he asked me if I could get any guns, for instance, handguns, AK47.

Any other weapons apart from guns?---He even asked me if I can get any explosives.

Did he indicate the number of guns that he was looking for?---At least ten.

Did he indicate why he wanted them?---For the group.

HIS HONOUR: Do you know when this occurred?---In 04, Your Honour.

Can you be any more specific than that?---I can't, I am sorry.

COUNSEL: What about discussion about explosives? Do you remember when it was that he asked you about obtaining explosives?---I am not sure exactly.

What was your response to the request for explosives?---I don't think I responded at all.

What was your response in relation in obtaining guns?---I remember telling him I will see what I can do.

Was the conversation about obtaining guns on one occasion or more than one occasion?---More than one occasion.

Were you successful in obtaining any guns?---No.

394 Counsel for Joud submitted that the trial judge had failed to deal properly with this aspect of Atik's evidence when he directed the jury as to how that evidence, taken as a whole, could be used.

395 His Honour's general direction regarding Atik, and his account of the 'mag wheels shop conversation' between Atik and Benbrika, was as follows:

Let me say some things about Mr Atik. I probably do not need to tell you, Atik is a pretty unsatisfactory witness. He is an admitted con man, liar, fraudster, social security fraudster. The level of some of his activities is breathtaking. Drawing a disability pension of some kind, having a butler, driving a BMW and living in a three-storey townhouse is only part of it. They are comments on the facts and they are matters, of course, for you, but Mr Atik's evidence requires me to give you a very, very serious direction. I might also say that he is, in a sense, an accomplice in these offences, although ultimately that is a matter for you as well, but the warning I'm going to give you will apply, in any event.

When a witness of the background of Mr Atik gives evidence, the assessment of his evidence is still a matter for the jury. However, you must take into account all of the matters to which I have just referred, including his prior inconsistent statement, his frank agreement that he engages in all of these other illegal and dishonest activities and that he has lied on many other occasions. They are relevant matters for you to take into account when you determine whether he's telling the truth or not. He is a witness who falls into a class of witnesses in respect of whom it would be extremely dangerous for you to reach a conviction on his evidence unless you were satisfied that that evidence is supported by other evidence. The Crown is not asking you here to convict these men on his evidence. The Crown points to a host of other evidence, but insofar, and as you are considering Atik's evidence, you must take into account all of these things. In particular, I give you a particular warning about the conversation on the way to the mag wheel shop. That conversation, of course, was only between Benbrika and Atik. There is no support for that conversation in any of the other material except, of course, the general support that the Crown points to as to the fact that the Crown alleges that the other material adds up to an intention by the organisation which the Crown says exists to foster or prepare for a terrorist act, but there is no other support for the specific conversation which Atik says occurred in the van on the way to the mag wheels shop, so you have to bear that in mind. It is a conversation relayed to you by a liar for which there is no other support.

It is not that there is not support for the trip to the mag wheels shop. The Crown has put before you a series of phone calls which occurred at about the time this was happening which, if you look at them, you might come to the conclusion is support for the proposition that Atik and Benbrika travelled together in the car to the mag wheels shop, in Mr Benbrika's wife's 1989 Tarago van, but, of course, the fact that they travelled in the van, or the fact that you might find that they travelled in the van together, does not assist very much on the question of whether the conversation took place.

All of that, you must take into account in determining where you place Mr Atik's evidence, not only in relation to the conversation on the way to the mag wheels shop, but in relation to the rest of his evidence, to the way in which he implicates a large number, if not all, of the accused in one way or another. You could examine that evidence and examine whether there is support for it in other evidence, other independent evidence. The Crown says, of course, that there is support for the whole case derived from the listening devices and telephone intercepts and that you don't need to rely on Atik at all, and you might ultimately come to the conclusion that you would be better off determining this case without reference to Atik's evidence at all. That is a matter entirely for you. My direction to you is that if you are considering Atik's evidence, you must do so in the light of the fact that he has that considerable cloud hanging over his head, that he has all of those things.

The Crown says that Atik is not an essential witness insofar as the Crown case is concerned in any event, and that is, of course, a matter entirely for you, but if you are examining Atik's evidence and you were proposing to act to any part of it, that is where he implicates Joud or Merhi or indeed any of them in anything, you would want to consider whether there is independent support for that evidence somewhere else, and you would look for it in the listening device and telephone intercept evidence.

The conversations that surround the mag wheels episode are in the red folder, which is exhibit 161, and that is the transcripts again, and you can get those on CD as well if you want to listen to them, yourselves.

I should have said to you, having given you a direction about Atik's evidence, he may also fit into the class of witnesses who are called accomplices, that is to say people who are also involved in the same crime as the persons who are charged. It matters very little in this case because of the direction I have given you in any event, but if you thought that he was an accomplice, you would similarly look for the same sort of support for his evidence before you acted upon it. That is not to say you cannot act on that evidence, but you bring your own common sense to bear on it and you look at the witness and you make up your mind. It's your function; not mine.

396 Counsel for Joud acknowledged that his Honour's warning as to the dangers of acting upon Atik's evidence had been adequate in general terms, but contended that it was insufficient so far as Joud was concerned. It was submitted that, having told the jury that there was no support for Atik's account of the 'mag wheels shop conversation', and that the intercept material could not be used as such support, his Honour ought to have given the jury essentially the same warning with regard to the 'gun conversation', set out above. It was submitted that the failure to do so may have led the jury to find support for Atik's version of that conversation in the intercept material, which would have been just as impermissible as in relation to the 'mag wheels shop conversation'.

397 In dealing with this ground, it should be noted that, at trial, counsel for Joud did not take exception to his Honour's warning to the jury regarding Atik. No further direction was sought. No warning relating to the 'gun conversation' was requested.

398 Counsel's failure to take any such exception was hardly surprising. His Honour's warning to the jury regarding Atik was extraordinarily strong. He came close to instructing the jury, by way of comment, that Atik's evidence was totally worthless. His warning regarding Atik would no doubt have carried significant weight.

399 When his Honour's direction is read as a whole, the reference to the 'mag wheels shop conversation' seems to us to be nothing more than one example of the dangers of acting on Atik's evidence. We think the jury would have understood quite clearly that the criticisms levelled at Atik's account of the 'mag wheels shop conversation' would apply with equal force to his evidence regarding the 'gun conversation'.

400 The trial judge told the jury that the Crown was 'not asking you here to convict these men on [Atik's] evidence'. He later said to them that the warning he had earlier given about Atik applied 'in relation to the rest of his evidence, to the way in which he implicates a large number, if not all, of the accused in one way or another'. The jury would have understood from these remarks that the criticisms levelled at Atik were of a general nature and were not confined to what had been said about the 'mag wheels shop conversation'.

401 It must be said that, during the course of oral argument before this Court, counsel for Joud shifted his position somewhat. Having begun by attacking his Honour's charge for failing to give a sufficiently clear and strong warning about the 'gun conversation', counsel changed course. He submitted that, in truth, Atik's evidence ought not to have been admitted at all. He submitted in the alternative that, if that evidence had been properly received, this Court should nonetheless set aside his client's conviction as unsafe and unsatisfactory, largely because it might have been based in part upon what Atik said.

402 This last point was separately developed by other counsel. They submitted that the convictions in the case of each of their clients were unsafe and unsatisfactory because of the possibility that the jury had acted on the basis of Atik's evidence. We will deal with that argument separately later in these reasons for judgment.

403 The Crown submitted, first, that the failure of Joud's counsel to take exception at trial to his Honour's charge regarding the 'gun conversation' ought to be fatal to this ground. Secondly, the Crown submitted that there was, in any event, ample evidence to corroborate Atik, so that the jury might safely have acted upon his testimony. It must be said that, as to that latter submission, it is by no means clear that it accords with the way in which the Crown put its case at trial.

404 In any event, we are satisfied that the jury were adequately warned of the dangers of acting upon Atik's evidence. Had Joud's counsel considered it necessary or desirable that a specific warning be given regarding the 'gun conversation', it was his responsibility to take exception to the charge, and request such a warning. His failure to do so suggests that he saw no defect in the charge.

406 Counsel for Sayadi submitted that the indictment against his client, which charged him with membership of a terrorist organisation (count 1) and providing a resource to a terrorist organisation (count 5), was wholly defective and ought to have been quashed. His argument was that the matters set out in the particulars provided by the Crown ought to have been included within the indictment itself. It was submitted that, as a result, the indictment did not meet the requirements set by law.

407 The Crown submitted that this ground was misconceived. There had, indeed, been an application on behalf of the accused, at trial, to quash the indictment in its original form. However, that indictment had been superseded by the filing over of the actual indictment upon which all of the accused were arraigned.

408 Count 1 of the indictment, insofar as it related to Sayadi, read as follows:

Count 1 The DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this behalf for her Majesty the Queen, INFORMS THE COURT AND CHARGES that between about 1 July 2004 and about 8 November 2005 at Melbourne in the State of Victoria and elsewhere, ... Fadl SAYADI ... [was], contrary to section 102.3(1) of the Criminal Code, intentionally a member of a terrorist organisation, knowing that it was a terrorist organisation.

The organisation was a terrorist organisation in that it was an organisation directly or indirectly fostering or preparing the doing of a terrorist act.

The "terrorist act" was an action or threat of action involving the detonation of an explosive or incendiary device or the use of weapons.

The action or threat of action was to be done or threatened with the intention of advancing a political, religious or ideological cause, namely the pursuit of violent jihad, and with the intention of either:

a) Coercing or influencing by intimidation the Government of the Commonwealth or a State, Territory or foreign country or a part of a State, Territory or foreign country; or

b) Intimidating the public or a section of the public.

The action, if carried out, would:

a) Cause serious harm that is physical harm to a person; or

b) Cause serious damage to property; or

c) Cause a person's death; or

d) Endanger a person's life, other than the person taking the action; or

e) Create a serious risk to the health or safety of the public or a section of the public.

The action or threat of action was not to be done as advocacy, protest, dissent or industrial action.

Alternatively, if the action or threat of action were advocacy, protest, dissent or industrial action, it would not be of a kind not intended to:

a) Cause serious harm that is physical harm to a person; or

b) Cause a person's death; or

c) Endanger the life of a person, other than the person taking the action; or

d) Create a serious risk to the health or safety of the public or a section of the public.

Count 5 And the said DIRECTOR OF PUBLIC PROSECUTIONS further INFORMS THE COURT AND CHARGES that between about 1 July 2004 and about 8 November 2005 at Melbourne in the State of Victoria and elsewhere Fadl SAYADI did, contrary to paragraph 102.7(1) of the Criminal Code, intentionally provide to a terrorist organisation resources, in that he made himself available to the organisation as a source of supply, support, information, aid or encouragement that would help the organisation directly or indirectly foster or prepare the doing of a terrorist act, by undertaking a leadership and administrative role in the organisation, knowing that it was a terrorist organisation.

The organisation was a terrorist organisation in that it was an organisation directly or indirectly fostering or preparing the doing of a terrorist act.

The "terrorist act" was an action or threat of action involving the detonation of an explosive or incendiary device or the use of weapons.

The action or threat of action was to be done or threatened with the intention of advancing a political, religious or ideological cause, namely the pursuit of violent jihad, and with the intention of either:

a) Coercing or influencing by intimidation the Government of the Commonwealth or a State, Territory or foreign country or a part of a State, Territory or foreign country; or

b) Intimidating the public or a section of the public.

The action, if carried out, would:

a) Cause serious harm that is physical harm to a person; or

b) Cause serious damage to property; or

c) Cause a person's death; or

d) Endanger a person's life, other than the person taking the action; or

e) Create a serious risk to the health or safety of the public or a section of the public.

The action or threat of action was not to be done as advocacy, protest, dissent or industrial action.

Alternatively, if the action or threat of action were advocacy, protest, dissent or industrial action, it would not be of a kind not intended to:

a) Cause serious harm that is physical harm to a person; or

b) Cause a person's death; or

c) Endanger the life of a person, other than the person taking the action; or

d) Create a serious risk to the health or safety of the public or a section of the public.

410 In addition to the indictment as filed, and upon which the accused were arraigned, the Crown provided a document dated 21 December 2007, the same date as the indictment, entitled 'Acts, Facts, Matters and Circumstances'. That document set out the evidence upon which the Crown proposed to rely in support of its case. For example, the document stated:

In the simplest terms: the Crown relies upon all of the acts of all of the accused to prove the relevant event. But relies only upon the acts of each individual accused to prove the guilty mind of the actor.

In addition, the document contained a breakdown of the elements of each offence charged, together with the type of fault and physical elements to be proved in relation to each count.

411 Counsel for Sayadi described this as the 'particulars document'. He submitted that it was plainly intended to be read in conjunction with the indictment itself. He argued that this was inappropriate, and that whatever was contained in the additional document should have been included in the indictment.

412 In oral argument before this Court, however, counsel shifted his position somewhat. He moved from complaining about the indictment having been defective, to complaining instead of his client having not been provided with sufficient particulars. He acknowledged, however, that no request for further particulars had been made at trial.

413 Regardless of what form this ground ultimately took, it seems to us to be clearly devoid of any merit. There is no basis whatever for thinking that Sayadi did not know precisely what case he had to meet. Particulars are given in order to ensure that an accused is not taken by surprise by the Crown case, and is able to prepare his or her defence accordingly.[210] They are also provided to avoid what has sometimes been described as 'latent ambiguity'.[211] The first of those objects was achieved, and there was no risk of any such uncertainty about the verdict.

1. SAYADI - FAILURE TO SEVER COUNT 5 ON THE BASIS OF DOUBLE JEOPARDY

415 Counsel for Sayadi submitted that his client, having been convicted on both count 1 and count 5, had thereby been subjected to double jeopardy.[212] His argument was that the Crown relied upon exactly the same conduct on the part of his client in order to establish the fault element in each of the two counts. That meant, in his submission, that the conviction on count 1 would operate as a plea in bar to count 5, and that count 5 ought therefore to have been severed.[213]

416 In oral argument, counsel developed that submission in the following way. He argued that the fault element for each of the two offences which Sayadi faced was 'knowledge that [the organisation] was a terrorist organisation'. He noted that the trial judge had described such knowledge as a 'fundamental element' of each count. He submitted that the need to prove exactly the same state of mind as an element of each offence necessarily meant that his client was being subjected to double jeopardy for what was, in essence, the same conduct.

417 In addition, counsel submitted that the legislative intent behind the offence charged in count 5, intentionally providing resources to a terrorist organisation, was to capture those 'outside' such an organisation who provided it with resources, and not those within the organisation who did so.

418 The Crown replied by submitting that, as his Honour had remarked,[214] severance of count 5 would not itself have overcome the vice alleged, namely, double jeopardy. His Honour had therefore correctly refused the application for severance, irrespective of whether the double jeopardy argument had any merit.

419 The Crown further submitted that there was no question of double jeopardy in this case. Although the fault element may indeed have been the same in respect of both counts, the physical elements were quite different. Count 1, the membership count, was a status offence, while count 5, providing resources, involved actual conduct. Neither offence was wholly subsumed by the other. They were 'aimed at different evils'.

420 The Crown accepted that some of the evidence led in support of the two counts overlapped, but submitted that this was of no legal significance so far as double jeopardy was concerned. The critical question was whether the elements of each offence were the same or, alternatively, whether the elements of one offence were wholly subsumed within the other.

421 The Crown relied, in support of that submission, upon the following passage from Pearce:[215]

On closer analysis, therefore, it may be that Wemyss[216] and other cases that are said to support the proposition that a plea in bar is available when a person is charged with different offences arising out of the same set of facts do not do so. Moreover, there are sound reasons to confine the availability of a plea in

bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.[217]

422 Next, the Crown submitted that, rather than raising an issue of double jeopardy, the matters raised before this Court on behalf of Sayadi were relevant, at most, to matters of sentence only. They had no bearing upon severance.

423 During the course of oral argument, reference was made to R v Tang,[218] a recent decision of this Court concerning the 'possession' and 'use' of sex slaves. In that case, the Court recognised the obvious overlap between the 'possession' and 'use' counts. However, it did so only in the context of sentence, under the rubric of double punishment. It was not suggested that the indictment itself had been defective, by being in violation of the principle of double jeopardy.

424 In Tang,[219] Maxwell P, Buchanan and Vincent JJA said:

Counsel for the applicant accepted that there were differences in the behaviour necessary to constitute possession on the one hand and use on the other. This meant, he conceded, that in the case of a particular complainant, convictions on both counts were sustainable. The submission was, however, that the sentences were "infected with error by reason of double punishment". This was said to be apparent from the overlapping behaviour giving rise to each pair of counts, the sentences actually imposed and the absence of reasons addressing the issue of double punishment.[220]

425 The Court held that the conduct which constituted 'possession' of a slave encompassed, though it was not limited to, the conduct which constituted 'use' of that slave. It would be unjust to punish the offender twice for the same conduct. The fact that the sentences on both counts had been made concurrent did not overcome the difficulty. In re-sentencing, the Court imposed a higher sentence on the 'use' counts than on the 'possession' counts, on the ground that the use of the slave was the exercise of power which 'most harshly exemplified the enslavement'. The sentences on the 'possession' counts punished the other manifestations of the offender's control over the slaves.

426 As was the case with Tang,[221] there is obviously some overlap between counts 1 and 5 in the case against Sayadi. That is particularly so where, as was the case here, the 'resource' said to have been provided to the terrorist organisation was Sayadi himself. Nonetheless, there are differences in the behaviour necessary to constitute each offence (we address the issue of double punishment in the context of sentence).

427 In Pearce,[222] two charges with overlapping elements were permitted to stand. It was held that a plea in bar was not available where the elements of each charge were not identical. It was further held that there was no abuse of process involved in laying multiple charges which contained different elements, and where one charge was not wholly included within the other. However, it would be wrong to punish an offender twice for the commission of elements that were common.[223]

428 In accordance with the reasoning in Pearce,[224] the submission that Sayadi was exposed to double jeopardy is rejected.

429 So too is the submission that there cannot be a conviction for providing a resource to a terrorist organisation where the supplier of that resource is himself a member of the organisation. The language of s 102.7 does not support any such restriction upon its scope. Nor is there any reason, as a matter of policy, why the section should be read down in that way.

1. SAYADI - FAILURE TO EXCLUDE CONVERSATION 24 - THE 'LEBANON CONVERSATION'

431 Counsel for Sayadi submitted that the trial judge erred in failing to exclude conversation 24 which involved a telephone call between his client and a man named Abu Steif, an acquaintance of his, in Lebanon. During the conversation, Steif told Sayadi not to come to Lebanon as his name had been 'listed with the State security'. He also said that he had heard that Sayadi belonged to 'a certain society'. Counsel for Sayadi submitted that this conversation was both irrelevant and hearsay and, therefore, inadmissible.

432 In oral argument in this Court, it was submitted that the 'Lebanon conversation' had a particular significance in this trial. It was virtually the only conversation by any of the accused with a person who was overseas at the time. It was submitted that, for that reason, the conversation was likely to be extremely prejudicial. It was further submitted that his Honour's direction to the jury regarding the use to be made of this conversation had been inadequate, and had failed to overcome its prejudicial nature. It was, however, conceded that no exception had been taken to that direction.

433 The Crown replied by submitting that the 'Lebanon conversation' was not tendered to prove the truth of its contents,[225] but only to indicate Sayadi's reaction when told that he was a person of interest to the Lebanese authorities. In conversation 25, which took place shortly thereafter, Sayadi telephoned Ahmed Raad[226] and said to him '[a]s soon as you finish, come down here alright? Race down here.' In conversation 26, Sayadi telephoned Shoue Hammoud, one of the accused acquitted in this case, who was himself in Lebanon at the time. Sayadi said to Hammoud, '[n]ames are on the list there', and that Hammoud must 'make up a story for [his] reason [for] going there'. In effect, the Crown's argument was that conversation 24 should not be viewed in isolation, but in conjunction with what Sayadi said and did immediately thereafter.

434 The Crown next submitted that his Honour's direction to the jury as to the limited use that they could make of this evidence was clear, accurate and strong. That direction, given immediately after conversation 24 was played to the jury, was in the following terms:

In this telephone call, somebody in Lebanon, Mr Steif, has said, "They put your name with the State security." That is not evidence against anybody in this case. That is pure hearsay. The evidence that comes out of this call is what Sayadi said, not what Mr Steif said. Mr Steif is not a defendant in this case, not an accused, so what he says is only relevant insofar as it provokes a response from the person he is speaking to. So there is no evidence before you that State security, whoever that is, presumably somebody in Lebanon, whatever it is, whatever it has or is or does, there is no evidence before you implicating Sayadi with State security or indeed anybody else because the comment by Mr Steif, the man in Lebanon, is not evidence before you. Do you understand that? It's hearsay, just something somebody said that can't be tested, can't be disputed in the circumstances of the case, so accordingly, it's not evidence upon which you can act.

435 The Crown submitted that his Honour's direction, '[t]hat is pure hearsay', was the only practical and non-confusing way of explaining to the jury the admission of what was said by Steif for a purpose other than to establish the truth of that which was asserted.

436 In our opinion, his Honour's direction to the jury was both correct in law and adequate. It was certainly sufficient to protect Sayadi from the prejudice which his counsel contended he had suffered by having the conversation to which he was, after all, a party admitted in evidence. The evidence was probative, and properly admitted.

20. MERHI - FAILURE TO GIVE A GOOD CHARACTER DIRECTION

438 Counsel for Merhi submitted that the trial judge erred in refusing to give the jury a good character direction on behalf of his client. During the trial, his Honour was asked to give such a direction on the basis that Merhi had no prior convictions. He declined to do so, but did point out to the jury that Merhi had no prior convictions.

439 Counsel also argued before this Court, though not at the trial, that, as well as the absence of prior convictions, there was a body of evidence showing Merhi's practice of da'wah, and other peaceful methods of following his religion, which provided a further basis for a good character direction. He submitted that, in those circumstances, the trial judge was wrong to refuse to give the good character direction that was sought.

440 We are not persuaded by either version of that argument. As was made clear by the High Court in Melbourne v The Queen,[227] a trial judge is not obliged to direct a jury about an accused's good character but may do so in the exercise of discretion. Much will depend upon the probative significance of the evidence in relation to the accused's propensity to commit the crime charged, as well as the accused's credibility.

441 In this case, it is apparent that the trial judge did consider that the jury should be reminded, specifically, that Merhi had no prior convictions. He considered that no additional direction was warranted. To have given such a direction in relation to Merhi might have resulted in prejudice to the other accused who may not have been entitled receive one. In addition, it could potentially have left the jury to speculate about why Merhi had been singled out in this way.

442 It is unlikely that a good character direction, beyond that which was given, would have been of any significant assistance to Merhi. Terrorist offences are as likely to be committed by those who have no prior convictions as by those who have been previously convicted of unrelated matters. In addition, Merhi did not give evidence, and there was no question of his credibility being buttressed by such a direction. We see no reason to doubt his Honour's conclusion that such a direction was not warranted.

443 Nor does it alter the position that counsel now seeks to rely upon evidence of Merhi's practice of da'wah and such like as an additional basis for the direction. In a case of this kind, religious observance is hardly likely to sway a jury towards an acquittal. After all, religious extremism was said to lie at the heart of the offending alleged.

1. MERHI - LEAVING THE CASE AGAINST THE APPLICANT ON A BROADER BASIS THAN THE CROWN HAD ALLEGED

445 Counsel for Merhi submitted that the trial judge erred in directing the jury that they could convict his client if they were satisfied that he had been a member of a terrorist organisation at any time during the period charged. It was submitted that the Crown's case was that Merhi was a member throughout the entire period from late 2004, until his arrest in November 2005, and therefore, the Crown had to prove that he was a member throughout that whole period. It was submitted that the effect of his Honour's direction was to unfairly expand the prosecution case beyond the ambit for which the Crown contended.

446 That submission is rejected. What his Honour told the jury regarding this matter was plainly correct. Although the Crown alleged that Merhi had been a member for the entire period, it was open to convict him of the offence charged if satisfied beyond reasonable doubt that he had been a member at any time within that period. That does not mean that the Crown case was permitted to be expanded. It means simply, as is obvious, that in a status offence such as count 1, it would be sufficient to prove membership of a terrorist organisation within the dates specified in the count, irrespective of whether that membership subsisted throughout the

entire period. Merhi could hardly defend that count by pointing to a date or dates within the period when he was not, relevantly, a member.

1. MERHI - FAILURE TO LEAVE STATUTORY DEFENCE OF WITHDRAWAL

448 Counsel for Merhi twice requested that the trial judge leave to the jury the statutory defence of withdrawal. That defence, under s 102.3(2) of the Code, was said to be that Merhi took all reasonable steps to cease to be a member of the organisation as soon as practicable after he knew it to be a terrorist organisation. He did not, however, contend for that defence in his final address. Counsel put Merhi's case entirely on the basis that Merhi had never been a member of the organisation, and that he did not have the requisite knowledge to constitute the offence. Even so, counsel submitted that his Honour was obliged to leave the defence of withdrawal to the jury because, so he said, there was sufficient evidence to warrant its consideration.

449 The trial judge rejected the submission. In his Honour's opinion, there was no sufficient basis in the evidence for the defence to be left. It was submitted before this Court that his Honour erred in taking that view.

450 We reject that contention. As the Crown submitted, the proposed statutory defence was entirely inconsistent with the defence put at trial. It is extraordinarily difficult, as a practical matter, to see how Merhi could, with any credence, have said, successively, that:

• there was no organisation;
• alternatively, if there was, it was not a terrorist organisation;
• alternatively, if it was a terrorist organisation, he did not know it was and hence could not have been a member;
• alternatively, if he was a member, he withdrew as soon as practicable after he discovered its true character.

451 There are, of course, cases where inconsistent defences cannot, as a matter of forensic reality, be advanced but the trial judge must nonetheless put them to the jury.[228] An accused charged with murder may raise alibi as his defence, but the judge may be required to put self-defence to the jury despite its not having been invoked. The present case is different. The defence of withdrawal is not one which carries a mere evidential burden. Rather, the defendant bears a legal burden in relation to that defence.

452 In these circumstances we do not see how the jury could reasonably have concluded, on the balance of probabilities, that Merhi took all reasonable steps to extricate himself from the organisation as soon as reasonably practicable after learning that it was a terrorist organisation. There was insufficient evidentiary foundation to leave that defence to the jury.

453 If that were not enough to decide the point, however, we agree with his Honour that the evidence itself did not suggest that Merhi had taken all, or any, reasonable steps to cease to be a member of this group. The defence of withdrawal could not be made out unless Merhi was able to point to the steps which he took to extricate himself from the organisation, and to demonstrate that he took them in a timely manner. So far from being able to do that, all that counsel for Merhi could suggest was that the jury might be satisfied that Merhi 'in some way let it be known ... that he no longer intended to be a member', and that it was to be inferred that he had done so 'soon after' he might be supposed to have knowingly joined the organisation. Thus exposed, the contention was hopeless.

454 As the Crown submitted, taking 'all reasonable steps' would at least require Merhi to inform Benbrika (the head of the organisation, and the person who determined membership) that he no longer intended to remain within it;[229] and then cease all further involvement with the organisation and its members.[230] Merhi did not, and could not, contend that the evidence was capable of proving that he took any of these steps. Similarly, as to proof that the steps were taken as soon as practicable after learning that the organisation was a terrorist organisation, counsel for Merhi was unable to identify, even in approximate terms, when it was that Merhi first knew that the organisation had that character.

455 Counsel for Merhi submitted in this Court that the following evidence provided a sufficient basis to enable the jury to find that the defence had been made out:

(i) In October 2004, the applicant sought advice from Mr Mohtadi about marriage, despite his being a "moderate" of whom Mr Benbrika had been very critical.

(ii) In December 2004, the applicant advised he would not attend Kinglake.

(iii) On 6th February 2005, the applicant is recorded as telling Mr Sayadi, "Leave me alone. Stay clean. Nothing, lazy".

(iv) On 9th February 2005, the applicant is recorded listening to lectures of a "moderate" sheikh Abdul Hakim Quick.

(v) In January 2005, the applicant is recorded as saying words to the effect that people cannot be forced to become Muslim.

(vi) In April 2005, the applicant attended lectures of the "distinguished moderate" Khaled Yassin.

(vii) The applicant was playing tapes of another "moderate" sheikh, Abu Usamah Adh-Bhaki, who strongly denounced radical Islam.

(viii) On 12th June 2005, in a critical conversation, the applicant is recorded speaking to Ahmed Raad. The applicant says that he has not seen Mr Benbrika in ages, that he does not see him any more, that "it's like I've barred him". When urged by Mr Raad to go and see Mr Benbrika, the applicant politely fobs him off and says that he is too busy.

(ix) Similarly, he is recorded as saying words to the effect that people have heard about the wrong Islam, about terror, which shows he is opposed to terrorism.

(x) From June to October 2005, the applicant was involved in creating and distributing a pamphlet, in respect of which he consulted Fitzroy Legal Service, explaining the right to pray at work.

(xi) On 8th and 9th July 2005, the applicant attended, and encourages others to attend, lectures of Yusuf Estes who denounced the London bombings.

(xii) He produced a Ramadan reminder leaflet, which again is consistent with mainstream thought.

(xiii) A body of material was tendered though Mr Mohtadi - cassettes, booklets, etc - demonstrating that the applicant was likely to have been entertaining moderate thoughts.[231]

456 In our view, none of this evidence takes the matter further. It does not indicate that Merhi took all reasonable steps to cease to be a member of the organisation as soon as practicable after he discovered its character. Quite the contrary. As the Crown contended, there was a very significant body of evidence showing that he did not do anything of the kind. That evidence included 22 TI and LD conversations to which Merhi was a party, 17 of them at Benbrika's home.[232] These conversations revealed that Merhi continued to associate with the other accused, as a group, throughout the period between September 2004 and November 2005. Indeed, Merhi was party to a conversation at Benbrika's home with Benbrika, Joud and Sayadi as late as 2 November 2005, less than one week before his arrest.

457 During 2005 alone, Merhi was party to discussions about the sandooq,[233]

execution videos,[234] the 1600 page book,[235] the trip to Ocean Grove,[236] assaulting suspected informers,[237] security for the jema'ah,[238] the assignment of roles to members of the jema'ah,[239] hiring a venue for lessons for the brothers,[240] the ASIO raids in June 2005 and the seizure of documents such as the 'Nineteen Lions' and 'The Clarification of What Occurred in America',[241] and the difficulty of buying 'the merchandise'.[242]

458 On 20 August 2005, in conversation 433, Merhi sought Benbrika's advice about watching videos on a computer. Benbrika advised him to buy his own computer. Merhi told Benbrika, 'I feel like I'm not worthy to be and going for this cause'; Benbrika advised him not to mention this to the brothers. Benbrika warned Merhi, '[w]atch yourself these kind of things'. Benbrika reminded Merhi not to make mistakes, 'because you are under the jema'ah'. Following that conversation, Merhi acquired a computer, loaded the 'common library' onto it,[243] and then sorted the files in that library into folders of his own creation. When the computer was seized on 8 November 2005, it was also found to contain the Olyway execution video, which had been viewed on that computer on 18 September 2005.

459 In the face of that body of uncontradicted evidence, it is not reasonable to

suppose that the jury could ever have been satisfied that the statutory defence was established.[244]

460 Counsel for Merhi further argued that, given his client's acquittal on count 9, the jury must have had doubts about the Crown's construction of the conversations that took place between Merhi and Benbrika in the period September to November 2004. Accordingly, so it was said, if the statutory defence had been left to the jury, there was a real chance that they would have accepted it.

461 In our view that submission is without merit. Logically, the verdict in relation to count 9 says nothing about the issue of withdrawal. Nor does it say anything about the Crown's construction of the conversations upon which it relied. The issue to be determined in relation to count 9 turned simply on the interpretation of particular conversations in light of the count as pleaded. The question was whether Merhi had undertaken to commit a terrorist act for the organisation. There was nothing expressly said to that effect, and the Crown case was one of implication. For that reason, the jury's verdict on that count was explicable and cannot be invoked in support of this ground.

1. MERHI - VERDICT ON COUNT 1 - UNCERTAIN OR AFFLICTED WITH LATENT AMBIGUITY

463 Counsel for Merhi argued that, even if the evidence as to withdrawal did not establish that defence entirely, it at least established that there was a break in membership for some period in mid-2005. Accordingly, so it was said, the jury had been left to consider a case in which it was reasonably possible that there were two distinct periods of membership. As the Crown did not elect to rely on one period, rather than the other, and the trial judge gave the jury no directions as to the need for unanimity concerning the point in time at which Merhi had to be found to be a member, the verdict was said to be uncertain or, at least, afflicted with latent duplicity.

464 We reject that argument. We see no reason for the jury to have entertained any doubt that Merhi remained intent on being a member of the organisation for the whole of the period in issue. The evidence to which we have already referred strongly supported that view.

465 Nor was it ever suggested at trial that Merhi may have become a member, and then ceased to be one, or ceased to intend to be one. As has been noted, the defence case was that he had never become a member. The Crown case was that he became a member late in 2004, and remained a member until his arrest in late 2005.

466 One may conjure up all sorts of theoretical possibilities, some of them quite fanciful, as to the basis upon which the jury's verdict regarding Merhi on count 1 rested. However, the only sensible interpretation of that verdict is, we consider, that the jury accepted the Crown's case.

1. AHMED RAAD - FAILURE ADEQUATELY TO SUMMARISE RECORD OF INTERVIEW

468 Counsel for Ahmed Raad relied, at trial, upon his client's answers in his record of interview as a 'complete defence' to the charges brought against him. As a result, it was submitted, the trial judge ought to have reminded the jury, in much greater detail than he did, of those answers in order to ensure that Ahmed Raad's defence was properly presented.

469 His Honour summarised the record of interview as follows:

Statements made by an accused in a record of interview are evidence against the accused, himself, but like all other statements made in the absence of someone, they are not evidence against anybody else. So you can't use anything that is in Ahmed Raad's record of interview as inculpating, or rendering guilty anyone else in this trial. It's only what he said about himself.

There are a number of matters in that record of interview I should draw your attention to. If you are going to note them, they are all numbered questions and I will note them. He was able to identify all of the other accused with varying degrees of familiarity. That is not evidence against any of the other accused. It's evidence against him of associating with them, because he concedes that he knows them. That is as far as that goes. They are questions between questions 67 and 119.

There are questions asked of him about a number of different topics. At 130 he said that about a year and a half ago he became religious. Before that, he wasn't overly religious, he was "into sex, drugs and rock and roll" as he put it. At 141, he said, "I class myself as a Muslim." At question 148, he was asked, "Okay, what's your opinions in regards to jihad?" And he said, "Yeah, nothing wrong with that."

Then he discusses jihad with the police officer in terms of self-defence. The police officer says, "When, then, in your opinion, [is] jihad for the defence of the religion justified?" At question 154. "If youse come to my house for no reason like youse did and you try to shoot me, but which youse didn't do, I would obviously try to fight back. That is called jihad."

At question 167, he gives a long answer to a question. "There are people who are engaging in Islamic jihad." That's what the police officer says in an interrogative form. The answer is, "But the ones that are doing the wrong thing, their wrong, obviously ... (reads) ... bombed on while they are asleep". Then at 158, he says, "I'd agree with that."

He is asked about sites on the internet and he says there are thousands of sites. At 174, "What is your view or understanding of a terrorist act?" And the answer is, "Killing innocent people." Later on at 178 he suggests that, he accedes to a proposition that if a bank robber goes into a bank and shoots the teller, is that a terrorist act, and he says, "Yeah."

Between questions 183 and 189, he talks about justification for terrorist acts and says he doesn't know whether a terrorist act is justified in Australia or not. He's not learned enough to be able to say.

At questions 198 to 226, there is a discussion about the sandooq, the fact that people put in, and he is asked, "What's the money used for?" At question 214. He says, "Oh, just to help anyone that's in need."

Further on, he's asked about court fines, and he says, "No, unless they haven't got the money to pay it. They pay it back. If they are really bad in debt, they can't pay it, then what can you do?"

He was asked at question 205, "Have you kept details of who has contributed to the sandooq?" He says, "No." And at 200 he was asked, "Have you been involved in either setting up a sandooq or running a sandooq?" He says "Yeah." 201, "And how long have you been operating a sandooq for?" "I don't know. ... (reads) ... just come to me and I do it."

Question 227, he's asked "Have you kept records?" "No." "None at all?" "No." He's asked, "Who needs to give permission for money to be used from the sandooq?" He says, "The sheikh." "Why is that?" ... (reads) ... giving money to anyone."

That is not evidence against Benbrika. It's evidence only of Ahmed Raad's knowledge of the sandooq and its workings.

The questioning goes over to a group. At question 240, this is referring to Benbrika, "If he told you to set up a sandooq, you'd do that?" Answer: "Yeah, for the right reasons." 241: "If he told you to set up a sandooq for the group that he was setting up, would you do that?" Answer: "What group was he setting up." Question: "The group that Benbrika has established for the purposes of committing a terrorist act?" Answer: "I don't know of no group." He's questioned at 248, "Do you refer to you and your brothers as belonging to a jemaah?" Answer: "Not really." Question: "Would you refer to you and your brothers as the jemaah?" Answer: "No."

Then he's asked further on about using the internet. At 286, he's asked, "Do you think Islam is under threat in Australia?" "Yeah." "For what reason?" Answer: "For killing innocent people." 288: "Whose killing innocent people?" Answer: "The soldiers." Question: "Australian soldiers?" "Yeah." Question: "And where are they doing that?" Answer: "In Iraq." Question: "Okay, anywhere else?" Answer: "Probably, I know, I know, where the Americans, Australian soldiers are." Question: "So your opinion is fairly strong in regard to Australian troops being overseas?" Answer: "Yes.

A couple of questions further down, the next question, "Do you think they should come home?" Answer: "Yes." Do you think they should be punished?" "Yeah, not all of them. The ones that done the right thing done the right, the ones that done the wrong, they done the wrong." "How do you think we can get the Australian troops to come home?" Answer: "I dunno, I'm not in politics."

At 307, he's asked about his views on stealing, dishonesty. At 308, he says, "Obviously you can't do it." 309: "What about criminal behaviour in general, deceptions and fraud?" Answer: "Obviously you can't do that, too." Question 318, "Your personal opinion, do you think, would you commit criminal acts to raise money for the purposes of jihad?" Answer: "I don't commit criminal acts."

There is a conversation at 330 and following about the bayat. At 333, "I put it to you that you have given the bayat to Benbrika, what do you say about that?" Answer: "Well, I don't know, I don't remember."

He was asked about Ocean Grove, whether he went with others to Ocean Grove on a Friday night in February, and he says, "I don't remember, I've got a bad memory."

Question 350, "Have you been involved in criminal activity to raise money for the sandooq?" "No."

He was asked then about the garage conversation at 357. "Do you recall in September last year being in Ezzit's garage with Aimen Joud and discussing a stolen car?" His answer is, "Are you seriously wanting me to remember that?" 358," Do you steal cars often?" Answer: "No." "Do the other jemaah members steal cars often?" Answer: "I don't know." A couple of questions down, "Do you think you would remember that or forget it?" Answer: "No, I remember about the stolen car, don't worry about that." And then says he went to court for it, says he didn't steal the car, he doesn't know who did. And he's asked, "How did you get charged for it?" He said he had gone to court for it. He said it was parts in my garage. "For what purpose was the car stolen?", at 369 Answer: "I have no idea." He's asked further about the garage conversation and eventually the police officer says at 378, "You are denying this conversation took place?" Answer: "Yep, well, I don't remember it." Question: "You don't remember it?" Answer: "No." Question: "Does that mean it didn't take place or you don't remember it?" Answer: "Well, I reckon it didn't take place." That is repeated a couple of times, and so it goes on to the end.

The answers to that record of interview are admissible as evidence against Ahmed Raad...[245]

470 Before this Court, counsel for Ahmed Raad further submitted that his Honour's repeated adoption of the word 'against', when referring to the use that the jury might make of his client's answers, 'convey[ed] the impression that the interview [was] an unfavourable piece of evidence against the accused'. It was submitted that this was both misleading, and incorrect.

471 The Crown submitted, in reply, that his Honour's summary of Ahmed Raad's record of interview was both detailed and sufficient.

472 As regards counsel's submission concerning his Honour's use of the word 'against', the Crown noted that he had also specifically told the jury that counsel for Ahmed Raad had relied, for his client's defence, upon the answers that he gave in the record of interview. In summarising the case for Ahmed Raad, his Honour said:

[Defence counsel] commenced by putting five matters. He said there were five volumes of electronic material, point 1; point 2, there was the common library, some of the documents in which will make you angry; 3, the dars classes were important at the beginning but not now; 4, the record of interview in November 2005, to which I have already taken you, and 5, what was the Crown strategy.[246]

Subsequently, his Honour again reminded the jury of counsel's references, in his closing address, to Ahmed Raad's record of interview. He described the analysis of the record of interview as constituting a 'family of ideas'.

473 The Crown submitted that his Honour's use of the word 'against', when understood in context, meant no more than that the answers given by Ahmed Raad were relevant to him alone, and not to any other accused. The adoption of that term did not suggest that the record of interview should be treated by the jury as necessarily containing answers unfavourable to Ahmed Raad. It was further submitted that the expression, 'evidence against the accused', was a common phrase which his Honour adopted in relation to every other record of interview tendered in this case.

474 No exception was taken on behalf of Ahmed Raad to his Honour's charge regarding the record of interview. That was not surprising. The summary given to the jury was very detailed, and entirely sufficient, in our view, to enable them to appreciate the significance of the answers given. A recording of the record of interview was itself tendered as an exhibit, and a copy of the transcript was provided to the jury. It was available to them throughout the course of their deliberations.

475 There is no substance to this ground, however it is put.

1. ALL APPLICANTS - WHETHER VERDICTS UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO EVIDENCE

476 The approach required of appellate courts in considering a ground which contends that a verdict is 'unsafe and unsatisfactory' involves the following steps:

1. the court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
2. in considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses;
3. in most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced; and
4. it is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal

appeal that the court may conclude that no miscarriage of justice occurred.[247]

477 A guilty verdict can only be said not to have been 'reasonably open' to the jury if there was no aspect of the evidence which obliged - as distinct from entitled - the jury to come to a different conclusion. In Libke v The Queen,[248] Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the 'unsafe and unsatisfactory' ground:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.[249] It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[250]

478 In other words, the question posed in M v The Queen,[251] namely, 'whether ... upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty', requires a court of criminal appeal to decide 'whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard'. The question is whether there was a 'solid obstacle to reaching a conclusion beyond reasonable doubt'[252] or whether, instead, the 'path to a conviction [was] open'. [253]

479 It was contended on behalf of all the applicants that the verdicts of guilty were unsafe because the jury may have relied upon evidence given by Atik for the Crown. The principal submissions in support of that contention were advanced by counsel for Benbrika, Joud and Merhi respectively. Their arguments centred on evidence given by Atik that Benbrika had told him of the targets of terrorist acts that were proposed to be carried out, and that Joud had sought from Atik weapons on behalf of the organisation.

480 In his final address, counsel for the Crown submitted to the jury that Atik's evidence should be viewed as part of the circumstantial case:

he gave evidence which, if you accept it, is of some significance, certainly in the case against Mr Benbrika, certainly in the case against Mr Joud, certainly in the case against Mr Sayadi and certainly in the case against Mr Bassam Raad, and generally, because the evidence of his dealings with the accused is part of the circumstantial evidence which you can use to determine the issue of whether the Crown has proved beyond reasonable doubt that there was a terrorist organisation.

481 Counsel for the Crown acknowledged that Atik was 'a practised liar' and 'a pretty good con man', but argued that other evidence - particularly the TI and LD conversations between Atik and Benbrika - made it probable that there had been a discussion about potential targets for terrorist acts. Counsel reminded the jury of the 'mag wheels shop conversation', and other conversations which occurred around the same time, and said:

Now, that's the evidence and insofar as it's capable of shedding light, it sheds light which suggests Atik is telling the truth about Benbrika being with him on that [mag wheel shop] trip. Of course, it doesn't say anything about what was said on the trip, and you have to rely upon Atik for that, but if he's telling the truth about that, then you may think that that goes a long way to determine whether it's likely that he's telling the truth about what was said because the attack upon him is that he didn't go, so it couldn't have been said.

Well, what's the probabilities of there being a discussion about targets? As I drew your attention to yesterday, in the conversation on 4 March 2005 between Atik and Benbrika, there was clearly a discussion about planning that was apparently current to carry out a substantial terrorist act in the nature of a bombing attack. That conversation is, in our submission, unequivocal and Atik said that's what they were talking about.

And then there is the conversation at tab 440-441 between Benbrika and Haddara on 17 September 2005 in which Benbrika says, "Yeah, there is something being planned," essentially. "Things aren't going to go cold," so the Crown says that is consistent with the evidence of Atik as to what was discussed during that conversation that he says took place on the way to the mag wheel shop.

Ladies and gentlemen, we leave it entirely in your hands. It's a matter entirely for you whether you do or do not accept Mr Atik's evidence on those or any matters. His Honour will give you some directions as to how you should approach Atik because obviously, arising from his association with these accused, the question of his being a credible witness comes into very sharp focus and His Honour will give you some directions as to how you should properly approach his evidence, but the Crown says there's ample other evidence in the case which supports Mr Atik's version of events and creates a likelihood that what he has told you is true and accurate.

482 As noted earlier,[254] the trial judge gave the jury a very strong warning regarding the reliability of Atik's evidence. Counsel for the applicants submitted that, notwithstanding the warning, it was still possible that the jury had convicted on the basis of Atik's unreliable and uncorroborated evidence.

483 This submission was put in two alternative ways, one specific, the other general. The specific submission concerned the lack of support or corroboration for Atik's claim as to what was said during the 'mag wheels shop conversation', or his claim that Joud had asked him if he could source weapons and explosives. It was submitted that the trial judge's directions had left it open to the jury to find such support in the content of the TI and LD conversations.

484 This submission cannot be accepted. His Honour's directions made plain that any support of Atik's evidence as there may have been in the TI and LD conversations went no further than the fact of conversations deposed to by Atik. Beyond that, as the trial judge correctly told the jury, they had to look to the whole of the Crown's circumstantial case to determine whether, apart from Atik's evidence, it satisfied them of the applicant's guilt.

485 The more general submission relied heavily on what the trial judge said about Atik's evidence in the course of his sentencing remarks. His Honour said it was unlikely that the jury had accepted Atik as a witness of truth. He continued:

Certainly, the Court will not now accept him as such. Indeed, having now seen and heard Atik give evidence and seen and heard him cross-examined on two occasions I am satisfied that much of the material he provided to the police, before he was sentenced, including his account of the targets conversation with Benbrika was untrue and designed purely to serve his own ends.[255]

486 Deploying what was described an 'inversion' of the language of M v The Queen,[256] counsel submitted that the doubts which the trial judge had about Atik's credibility were doubts which this Court should also have. Accordingly - and critical to the submission - it was said that the mere possibility that the jury had acted on any of Atik's evidence rendered the convictions unsafe. According to the written submission on behalf of Merhi:

Mr Atik's evidence may well have given the jury a crucial path of reasoning towards guilt. But if that path was in truth not open because of the doubts about Mr Atik, then the conviction must be set aside.

The submission was said to be supported, at least by analogy, by the decisions of the High Court in Prasad v The Queen[257] and of this Court in R v Galas; R v Mikhael.[258]

487 This submission must be rejected. It is wrong in principle and derives no support from the authorities cited. As to the question of principle, the issue is not whether it was open to the jury to be satisfied of any aspect of Atik's evidence, or whether or not they may have accepted a particular aspect or, indeed, the whole of his evidence. For, as the High Court observed in R v Hillier,[259] a circumstantial case is not to be considered piecemeal, either at trial or on appeal.[260] As we said earlier, the test is whether, based on a consideration of the whole of the evidence, it was open to the jury to be satisfied of the applicants' guilt.

488 As to the authorities, the basis of the decision in Prasad[261] was that there had been a misdirection by the trial judge which 'might have led the jury into an entirely false line of reasoning'.[262] It is not suggested that there was any relevant misdirection in the present case. In Galas,[263] the basis of the decision was that it was not reasonably open on all the facts for the jury to be satisfied of guilt on the count of murder. An alternative inference was open on the evidence, which could not logically have been excluded.[264]

489 So far from providing support for the present submission, the decision in Galas[265] merely exemplifies the orthodox approach to the unsafe ground. In this case, for reasons to which we shall come, we consider that it was clearly open to the jury, on the evidence before them, to be satisfied of the applicants' guilt of all of the offences of which they were convicted, other than counts 7 and 8 (Joud) and count 12 (Benbrika).

490 As Weinberg JA pointed out in argument, the logic of the applicants' argument was that Atik's evidence ought to have been excluded altogether or, at the very least, that the trial judge should have told the jury to ignore it altogether. Senior counsel for Benbrika accepted that this was indeed the corollary of the contention that the mere possibility of the jury's having relied on Atik's evidence was sufficient to render the verdicts unsafe.

491 At no stage of the trial was the trial judge asked to exclude Atik's evidence. This is hardly surprising, for the submission would inevitably have failed. The trial was conducted on the basis that the trial judge would give the jury a warning about Atik's evidence, as he duly did. It was never suggested that the evidence should not be left to the jury to evaluate. It was thus evidence which fell squarely within the following statement by the High Court in Doney v The Queen:[266]

Evidence that attracts a warning is evidence that has been adjudged, either generally or in the particular case, as having probative value such that, subject to warning, it can be taken into account by the jury in its deliberations. Assuming an appropriate warning, the weight to be given to that evidence is as much a matter to be determined by inference based on the jury's collective experience of ordinary affairs as is the question whether evidence is truthful.

...

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.[267]

492 This is, regrettably, yet another example of a submission advanced on appeal which is premised on a different trial having been conducted from the one which actually took place. As we said earlier, those who seek to challenge the result of a trial will be treated as bound by the manner in which the trial was conducted and confined to the matters actually put in issue by their counsel.[268]

493 It was contended on behalf of all the applicants that the verdicts of guilty on the counts of which they were convicted were unreasonable and thus could not be supported in the sense countenanced in M v The Queen.[269] It is best to deal with the several counts in turn.

25.2.1 The existence of a terrorist organisation - all applicants

494 In our view, the evidence clearly demonstrated that there was an 'organisation' within the meaning of that term required by the Code. It also demonstrates that those accused who were convicted of count 1 were knowing and intentional members. That 'organisation' existed for the purpose of readying its members to carry out violent jihad when, and if, directed so to do by Benbrika. It therefore existed to foster, or prepare, the doing of a terrorist act or acts.

495 The evidence showed that members of the 'organisation', together with some others outside the 'organisation', referred to it as 'the jama'ah'. They also, on occasion, referred to each other as 'the brothers' or 'the shabab' (albeit that 'brothers' and 'shabab' were occasionally used in a wider sense as well).[270]

496 Benbrika was the amir (leader) of the 'organisation' and his authority as amir was unquestioned, and unquestionable.[271] He demanded that each member obey him completely. Admission to the 'organisation' was therefore dependent on prospective members swearing a bayat (a pledge) to Benbrika[272] and upon Benbrika accepting their bayat.[273]

497 Some members of the 'organisation' had particular responsibilities. Joud and Sayadi performed leadership and administrative roles. They conducted or arranged

for a number of training and bonding trips, and indoctrination.[274] Ahmed Raad functioned as treasurer.[275]

498 The 'organisation' maintained a sandooq (box), to which members were required to contribute by way of zakat (a form of religious tax).[276] Ahmed Raad kept the sandooq in cash, and he kept it hidden or disguised to guard against possible seizure by police.[277] As well as the zakat, members of the 'organisation' undertook a range of activities to raise funds for the sandooq, including car theft and car-breaking, car re-birthing, the exploitation of misappropriated credit card numbers and trafficking in stolen sim cards.

499 Although offences of dishonesty would ordinarily be regarded in Islam as haram (forbidden), they were justified within the 'organisation' on the basis of Benbrika's teaching that the blood and wealth of the kuffar were lawful targets.[278] Substantial funds were raised despite police seizures of moneys in September 2004 and June 2005.[279] The evidence showed that the sandooq was used to pay expenses incurred by the 'organisation',[280] and was also intended to fund the purchase of

items necessary to carry out terrorist acts.[281] Any significant payment out of the sandooq required Benbrika's approval.[282]

500 Attempts were made to keep the existence of the 'organisation' secret and members of the organisation spoke among themselves of using violence against persons suspected of having betrayed the 'organisation's' secrets to the police.[283]

501 In the course of their investigations of the 'organisation', police discovered and seized a large amount of doctrinal and operational literature. Some of it was common to several members of the 'organisation', for example, videos for training in the use of improvised explosive devices ('IEDs'), and the detonation of IEDs by mujahideen.

502 In other cases, members of the 'organisation' had in their possession identical items of this nature, thus implying the existence of common sources and, in some instances, acts of orchestrated sharing. An example of that was material referred to at the trial as the 'common library'. Copies of the 'common library' were found on a CD seized from Joud, and on computers seized from Ahmed Raad and Merhi. The same material was also found on another computer seized from the Raad family home.

503 The probability of the sharing of doctrinal and operational literature between members was also supported by the presence of fingerprints and DNA on seized items, and by a number of TI and LD conversations in which various of the accused discussed sharing materials, and providing one another with website details for obtaining such material.[284] They also discussed the need to conceal potentially incriminating items.[285] It was open to infer that at least some of that material - including violent videos - may have been used for training purposes within the 'organisation', though it may not have been possible to identify precisely which of that material had been utilised in that way.

504 That evidence, taken as a whole, supported the inference that the 'organisation' existed largely to carry out acts of violent jihad, as and when determined by Benbrika. In addition, there were a number of specific conversations on which the Crown relied to show that the 'organisation' existed for that purpose.

505 For example, the 'garage conversation',[286] which took place between Ezzit Raad, Joud and Ahmed Raad, on 10 September 2004. During that conversation, Ezzit Raad expressed doubts as to whether it was appropriate to deal in stolen cars in order to raise money for the 'organisation'. The conversation continued:

AJ: It's what we have to do man

...

AR: ... What more proof do you want? You think we can just go and get the weapons and walk off? We need money to get it ... Slowly, you have patience man.

506 Later in that conversation, after Ahmed Raad said that they would make 'five grand' on the car, Ezzit Raad again said that he could not see how it was right. They continued:

AJ: I got a bike ... I got this. Brother, what do you think? You think you'll get done for this, how about me? I'll get done over ten times.

507 Ezzit Raad again expressed doubts, to which Joud replied:

AJ: Allah's merchandise is dear. What [inaudible] is expensive, man. The pleasures of Allah is expensive.

...

AR: ... if you've got a better way of getting money mate, I'll go for it.

...

AR: You'll, you'll point a gun at a kuffar's head and shoot him but you won't put the stolen car here.

ER: This is different, alright. Don't put that with this.

AR: You're taking the stuff. What's wrong, what's the difference?

508 Ezzit Raad expressed concern about being arrested for stealing the car. Ahmed Raad responded by saying:

AR: ... this is in your garage in Allah's cause. Every, every day and night it's in here, ... the reward you're getting.

509 Ezzit Raad appeared not to be convinced, and said that he had to speak to Benbrika. Ahmed Raad replied that, in view of Ezzit Raad's doubts, he should indeed speak with Benbrika.

AJ: ... How do you think the brothers in Chechnya. And how do you think they gather? They go steal just like this. You don't see, you only see those nice [inaudible] macho videos where they're all holding AKs and all were shooting. You don't see what they do behind.

ER: I've seen it. I've seen it.

AJ: They don't do it every single day man. They do this. They take. You see all those nice eh, hell for the Russians. It's not, it's not the nice pretty picture you see all the time.

511 Later, the conversation continues. Ahmed Raad says:

AR: ... what do you want me to do ... you follow the Sheikh when he says do this you know I'm talking about talking Ibin Taymiah his proofs ... what he said you know when you can kill the Kuffar you can do this you can do that you can do that. But when it comes to saying that this stuff's lawful. You don't follow the Satan man follow this one.

They're Kuffar man stuff them man ... they're killing our brothers and sisters and little kids ...

512 During conversation 59, on 24 September 2004, between Benbrika and Merhi, Benbrika referred to the Koran and said:

Now, they kill our kids. It's our right according to the first verse you read to take out revenge.

...

Allah is telling us it's better for you not to take. That's all, but you can do it. You understand?

513 Benbrika also told Merhi not to talk to anyone about their discussions as he might find himself in trouble. He added, '[i]f you would like to do these kind of things you have to do it secretly ... Watch yourself, because if you show them what we want (slapping noise) they gonna put them in, put us in the jail'. Merhi then said:

AM: ... But if were sincere, there will be a door for us.

BB: No, no doubt

...

AM: But it could be one day or one year

BB: It could be, the Jihad could be here, you understand? Could be here could be outside.

...

BB: It could be anywhere. Anywhere. But it's still Jihad. Jihad doesn't mean that you have to go from place to a place.

514 Merhi then asked how someone could tell if there was a door, and Benbrika said that it was better to have a jema'ah with a leader, someone with knowledge who could tell if it was a door. The conversation continued:

BB: ... you need people minded, you understand? People who have [word deleted] in their heads. You, you shouldn't just do, kill just one or two or three, you need some good [inaudible]

...

BB: ... like close to the station, the train [makes sound]

...

BB: Do a big thing

AM: Like Spain and - that's why you need few numbers and -

BB: That's it. That's it. Don't do it [inaudible] it has to be under a leader, a leader among the brothers for example -

AM: Now, now, Sheikh, see, I've been thinking about this heaps, a lot, a lot, a lot, but the thing is all this stuff is pleasing to Allah, it's pleasing to Allah. See I have to get stronger in the belief of its pleasing him

...

AM: Sometimes I've got doubts if, if I do this, is it pleasing him? Or am I doing it wrong?

BB: No, you are pleasing him ...

...

BB: ... These kind of things needs people who are not scared and they don't care about the terrestrial world.

...

BB: Nobody wants to work. Nobody wants to die [inaudible]

...

BB: Who wants to die?

...

BB: ... in Australia when you do something they stop to send the troops.

...

BB: For example. If you kill we kill here a thousand, the Government is going to think.

AM: Bring the troops back?

515 During conversation 65, on 27 September 2004, between Benbrika, Kent, Joud, Sayadi and an unidentified male, shortly after the September 2004 raid, Kent said:

SK: ... slowly, they're eating at us

BB: That's it.

SK: You know

BB: Yeah. That's why we shouldn't be weak.

BB: ... it like becomes bigger to you, so you'd like to just run away

AJ: Run away?

BB: That's what I hear

AJ: Nah.

BB: That's why I can't - listen,

AJ: Listen, come on, bring the tools, sheikh, bring the tools and before election we'll make sure of something.

[Overtalk - inaudible]

BB: [Laughing]. Maybe.

AJ: Huh? [Inaudible] bring the tools, Sheikh, please

BB: Which tools?

AJ: Bring the tools from the shabab ...

BB: Tools.

AJ: Do you wanna smell some cartridge we'll let you smell some.

SK: Sheik, it's too hard here

BB: What?

SK: Anything in this country

BB: Yeah, I know, I know this

SK: We can't move, we can't do nothing

BB: You can do nothing. [Inaudible] this kills a person if you're not patient it kills you. [Inaudible]

...

AJ: Sheikh, if youse don't want us to run away then prepare something

BB: ... I wish, I wish

517 During conversation 89, on 18 October 2004, between Benbrika and Joud, Joud told Benbrika that the police had 'got' him for stealing the car ('the Holden at Yasin's'), and that ASIO had taken 'everything'. He then asked Benbrika:

AJ: Well Sheikh did did you speak to Abdullah, the young one?

BB: Mm.

AJ: What did you exactly explain to him?

BB: No no I didn't explain. He want to get a loan from the bank.

...

AJ: ... he wants to rush too many things

...

AJ: Yeah so and he goes, "Oh, y'you know if if youse can't do this you're disorganised." I said, "No, it's not the case you know. By you saying this you're, like, you're diminishing the brothers efforts you know the brothers have tried lots of things. Look they all got arrested."

BB: He wants to do it straight away.

AJ: Yeah but like that, Sheikh, go do it, if he kill one or two three four. It's no good like this.

518 During conversation 91, on 19 October 2004 between Benbrika and Merhi, Merhi said:

AM: ... I know someone from[287] overseas here. Do we, is the problem here the people or the money? If it's the people ...

BB: No it's not.

AM: Or I'll because listen if it's the people I can stay but if it's not the people then I'll go over there and I can help down there. Like where am I needed more? Do you understand?

BB: Yeah here here but the problem here, the government is watching too much. That's the problem to us he's watching especially now.

AM: M'mm.

BB: And we need more money. Money is is a big problem.

AM: So so what should I do? Should I give what I can and then go or should I just stay here and then try to get money or?

BB: It's up to you, have a look what you what you ...

AM: I don't know. My heart's been leaning on kind of going, but see do we need money to get the good stuff of it. I was thinking can't it be done with the little things.

BB: Like what?

AM: Like with the little things.

BB: We, we're not thinking to do this. This is now we are thinking to do something big.

AM: But if I stay, I'm not doing dirties on them and if I go I'm not doing dirties on you. It's all in Allah's cause.

BB: That's it.

AM: So I got your support on whichever thing I choose, yeah?

BB: Yeah but you don't do something without the permission without my permission, here. Because only we work organised.

AM: Yeah yeah.

BB: No one works alone.

AM: I, I can wreck it for everyone.

BB: Yeah, like that, yeah.

520 During conversation 291, known as the 'maximum damage conversation', between Benbrika, Joud and two other persons, on 23 February 2005, shortly before the second raid, the following discussion took place:

BB: You wanna take it?

AJ: Ah, nah, nah, not now I don't wanna

BB: Okay

AJ: Yeah I'll, [inaudible] I don't want to have anything at home.

A [sic]: What do you mean?

AJ: Because they could come any time

521 Later in the conversation, Benbrika spoke of the need to remain faithful to Islamic law, saying:

That's why we need to revive these kind of things. Especially now the best thing now is to be as a Moujahed prepared. Has - everyone has to prepare himself. Or to die or to be jailed Allah knows best. I don't want this kind of life. Give that to them. 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 them. That's what we waiting for. You be careful [inaudible] trust no one.

522 The Crown also relied on the following evidence:

• concerning Joud's possession of the Manuals CD;[288]

• Benbrika's dealings with SIO 39 in relation to explosives;[289]

• a conversation about authorities searching the seized laptop for targets and maps of infrastructure;[290]

• conversations relating to the bomb-making diskettes which Merhi brought to Benbrika;[291]

• the discussions between Benbrika and Ahmed Raad in May 2005 about training and Louth;[292]

• a discussion between Benbrika and Joud about going somewhere to 'talk free[ly]' about bombs;[293]

• the conversations between Benbrika and Haddara on 17 September 2005; and

• an observation by Sayadi to Joud, referring to material concerning bomb making on Joud's computer that, if the authorities saw the contents of the computer, 'it's like as if they know what you're thinking man.'[294]

25.3.1 Benbrika - counts 1 and 2 - member and director

523 It was submitted on behalf of Benbrika that, even if it were open to find that there was a terrorist organisation as alleged, it was still not open to a jury properly directed to find beyond reasonable doubt that Benbrika was intentionally and knowingly a member of that organisation, or that he knowingly directed it.

524 That submission is rejected. In our view, the evidence established beyond reasonable doubt that Benbrika was the amir (leader) of the organisation, and saw it as his duty to act as such.[295] It showed that he alone determined who would be permitted to join the organisation, as was demonstrated by his rejection of Atik's bayat,[296] and the seriousness which was attached to the bayat.[297] It was also demonstrated by Benbrika's claim that he alone knew all the brothers, and all the business of the organisation.[298]

525 The evidence showed that Benbrika alone approved major items of expenditure from the sandooq,[299] and stipulated the contributions which members were required to make to it.[300] He determined what were,[301] and were not,[302] permissible means to raise funds for the organisation.

526 The evidence demonstrated that Benbrika encouraged members of the organisation to train for jihad. This included the use of the execution videos for that purpose.[303] Benbrika determined who among the members would attend training and bonding trips.[304] His teachings on the true meaning of jihad,[305] the legitimacy and rewards of martyrdom operations,[306] the rewards of arrest and imprisonment in Allah's cause,[307] and that the blood and wealth of the kuffar were lawful targets, appear to have been regarded as authoritative by members of the organisation, and

to have informed their activities.[308] Any challenge to his teaching was dismissed out of hand.

527 It follows that this ground, insofar as it relates to Benbrika's convictions on counts 1 and 2, is rejected.

25.3.2 Joud - counts 1 and 3 - member and providing resources

528 It was submitted on behalf of Joud that, even if it were open to find that there was a terrorist organisation, the jury should have entertained a reasonable doubt that Joud was a member, or at least not been satisfied that he had become a member knowing that it was a terrorist organisation. Reliance was placed upon evidence of Joud's statements and demeanour in the latter part of the period covered by the indictment. It was said that, apart from anything else, the jury ought to have entertained a reasonable doubt as to counts 1 and 3 based on the fact that Joud had drifted away from the group.

529 That submission is also rejected. The evidence does not appear to us to show that Joud had, in fact, drifted away from the group. To the contrary, as the Crown contended, there were few events throughout the entire period of the indictment that did not involve Joud directly. The evidence was that, although he was one of the youngest members of the jama'ah, he acted as, and was treated as, one of its 'elders'.[309]

530 Benbrika confided in Joud about the future direction of the jama'ah at a point when he himself feared that he would be arrested.[310] As has been seen, Joud expressed himself as keen to bring about the doing of a terrorist act which would cause 'maximum damage'.[311] He repeatedly urged Benbrika to take action, including conducting additional classes about jihad and related matters,[312] training for members,[313] assaulting suspected police informers,[314] and bringing forward the commission of a terrorist act.[315]

• in the recruitment of members (particularly Atik[316]);
• assigning roles and responsibilities;[317]
• considering the manner in which suspected informers should be dealt with;[318]
• the taking of the bayat;[319]
• considering the implications of intervention by the authorities;[320]
• assessment of the role of SIO 39;[321]
• consulting with Benbrika on the television interviews of Benbrika proposed to be conducted by a television journalist;[322]
• obtaining and disseminating jihadi and instructional material and preventing its discovery by the authorities;[323]
• indoctrination;[324]
• identifying and arranging venues for dars classes and confidential discussions;[325]
• travel to Sydney,[326] Kinglake,[327] Ocean Grove[328] and Louth;[329]
• fund-raising (including the use of frauds and thefts);[330]
• the concealment of the sandooq;[331]
• the management of expenditure,[332]
• obtaining the wherewithal for the doing of a terrorist act;[333] and
• preparing in case of arrest.[334]

532 Joud's knowledge of the nature of the organisation was properly to be inferred from his involvement in it. It was also apparent from conversations which he had with Benbrika about the questions asked by Elmohandis[335] and the jema'ah as a terrorist organisation.[336]

533 It follows that this ground, insofar as it relates to Joud's convictions on counts 1 and 3, is rejected.

25.3.3 Joud - count 6 - attempting to make funds available for a terrorist organisation

534 It was further contended on behalf of Joud that the jury should not have been satisfied beyond reasonable doubt that Joud attempted to make funds available to the organisation. The argument advanced was that, while the Crown had gone to the jury on the basis that they need not go past conversations 40, 42, 65, 140, 185 and 212 in order to be persuaded of Joud's guilt of that offence, it was apparent, for the reasons submitted by counsel for Joud to the jury at trial, that those conversations did not establish guilt beyond reasonable doubt.

535 The argument put by counsel for Joud was, in effect, two fold. First, that the jury should not be satisfied that there was a terrorist organisation of which Joud was a member. Secondly, if the jury were satisfied that he was a member of such an organisation, they should nonetheless regard the offence of providing funds to a terrorist organisation as limited to persons who were not members of that organisation.

536 In our view, it was open to the jury to be satisfied that Joud's involvement in the scheme to raise funds through dealing in stolen cars, between 10 August 2004 and 17 September 2004, was an attempt to provide funds to the organisation. The notion that the offence was limited to persons other than members of the organisation was misconceived, as the trial judge correctly directed the jury. So too was the suggestion that the Crown relied solely upon conversations 40, 42, 65, 140, 185 and 212. What counsel for the Crown submitted, in fact, was that:

[O]n those conversations alone you [the jury] could convict Joud on each of counts 1 and 3. Of course, there are so many other conversations that, it you don't agree with me on that, you will find plenty of other material to support the case against Joud on those counts.

537 As the Crown submitted in this Court, it is also apparent that, if the evidence of those conversations, taken in isolation, was not sufficient to convict Joud, there was certainly sufficient evidence to convict him when the evidence was taken as a whole.

538 The jury would have been entitled to have regard, in addition, to conversation 9, which took place on 1 September 2004, in which Joud demonstrated that he had advance knowledge of the theft of the VY Commodore, that he knew how much money was in the sandooq, and that he knew that the person who was to steal the vehicle was to be paid from that fund. The jury could also have had regard to conversations 12, 13, 14, 16, 20, 21, 31, 32 and 41 between Joud and Taha, about cutting up, stripping and dealing with the vehicle. These conversations showed Joud's personal involvement in these activities.

539 In addition, there was also evidence that, on 17 September 2004, a van with parts from the stolen Commodore was located at Joud's home during a police search. The registration label for the vehicle was also found in a bin in Joud's bedroom, and a Commodore key was located in the pocket of his trousers.

540 In addition, there was evidence regarding a Honda Prelude in conversation 17, on 8 September 2004, the morning after that vehicle was stolen. Joud told Sayadi to wake Taha and said (in Arabic), '[t]here is the second car'.[337] He said that he had told Taha that he would put it in 'the same place' although '[n]ow but I don't want to put it there'.[338] There were also further conversations during the course of that day between Joud and Taha about where the vehicle would be stored,[339] and a conversation that night when Taha called Joud again and asked whether he had counted the money the day before.[340] Taha told Joud that Ezzit Raad had agreed that the stolen vehicle could be stored in his garage.[341]

541 On 10 September 2004,[342] Joud had a number of conversations with Taha, Ahmed Raad and Sayadi about moving the stolen Honda to Ezzit Raad's house and pushing it into the garage there.[343] Joud said that he had contacted a tow truck driver and made arrangements for the vehicle to be moved.[344] There was evidence too that, on 17 September 2004, police located the Honda registration label in Joud's front yard.[345]

542 There was then the 'garage conversation' on which the Crown specifically relied,[346] during which Joud said that the Honda was just picked out off the street, and that '[w]e didn't pinch it', 'someone pinched it for us'. Joud also told Ezzit Raad that they paid 'two Gs' for it and that it was '[g]ood value ... for the dollar'.[347] Referring to damage to the vehicle, Joud said, 'we smacked it. ... We did it on purpose ... To make it look like ah damaged ah auction car when it's on the truck'. Reference was made to the Commodore too, and the expectation of a substantial profit from both cars.

543 It will be recalled that it was in that conversation that Ezzit Raad expressed doubts about the propriety of stealing cars to raise money for the organisation and that Joud and Ahmed Raad sought to persuade him that it was justified because it was 'in Allah's cause', and permissible on the basis that Australia was at war,[348] and it was lawful to use the wealth of the kuffar. Joud drew an analogy with the 'brothers' in Chechnya stealing in order to obtain their 'AKs'.[349]

544 It will also be recalled that, following the 'garage conversation', on 12 September 2004,[350] Joud discussed Ezzit Raad's doubts with Benbrika and the resolution of the problem by teaching the 'base of the jihad'. Joud told Benbrika that the money would be coming when the things were sold.

545 Later, on 19 September 2004,[351] in a conversation with Benbrika and Taha about the police raids in relation to the stolen vehicles, Joud said, '[w]ith this hit Sheikh we lost, say ten thousand dollars'.

546 It follows that this ground, insofar as it relates to Joud's conviction on count 6, is rejected.

25.3.4 Sayadi - counts 1 and 5 - member and providing resources

547 In written submissions filed on behalf of Sayadi, it was contended that the verdicts of guilty on counts 1 and 5 were unreasonable, or against the weight of the evidence. That contention was not further developed in writing or in counsel's oral

submissions. In the circumstances it is probably unnecessary to say anything more about it.

548 In case the matter goes further, however, and it is thought that the contention warranted a more detailed consideration, we should say that, in our view, there was sufficient evidence to establish beyond reasonable doubt that Sayadi was guilty of the offences with which he was charged.

549 The evidence established among other things that:

• Sayadi gave the bayat to Benbrika,[352] he discussed with Benbrika which of the brothers had given Benbrika the bayat[353] and how information about someone having given the bayat had leaked out,[354] he recommended to Atik that he give the bayat to Benbrika and advised Benbrika to accept it from Atik and Bassam Raad as a means of controlling them;[355]
• Sayadi referred to himself and Joud as the 'elders' of the organisation[356] and, in that role, vetted potential recruits for the organisation.[357] He also advocated greater use of 'tests' for the brothers to maintain security;[358]
• Sayadi also played a role in gathering intelligence for the organisation[359] and in developing strategies to deflect and deal with the authorities. This included monitoring what was said about the group,[360] preparing for questioning by authorities,[361] and considering the implications of police and ASIO searches (including what materials the authorities might have obtained)[362] and how the future discovery of incriminating material could be prevented.[363] Sayadi was concerned about the difficulty of getting 'merchandise' required by the organisation,[364] and with what should be done if the authorities came to arrest them;[365]
• when Sayadi was informed that his name 'has been listed with the State Security' in Lebanon and that he belonged 'to a certain society',[366] he reacted as if it were a threat to the organisation. He investigated suspected leaks of sensitive information and informers,[367] and reported to Benbrika;[368]
• Sayadi participated in the trip to Sydney in December 2004,[369] the organisation for the Kinglake trip and follow-up after it,[370] planning for future trips to remote locations,[371] planning and arranging the trip to Ocean Grove (including undertaking a reconnaissance trip with Joud and Ahmed Raad beforehand),[372] and participating in the trip to Louth;[373]
• Sayadi was entrusted with the knowledge, custody and concealment of the bomb-making diskettes which Merhi had brought to Benbrika for the jema'ah;[374]
• Sayadi also organised venues for classes and meetings,[375] and bought a group laptop for the purpose.[376] He promoted the collection and dissemination of jihadi literature (the 'Nineteen Lions' and 'The Clarification of What Occurred in America'[377] and other literature about jihad and 'martyrdom operations'[378]) as well

as 'The Call of the Global Islamic Resistance',[379] the At-Tibyan video 'And Incite the Believers',[380] an Al Qaeda video,[381] and the common library CD.[382] He watched[383] and discussed[384] sniper videos and encouraged other brothers to read about snipers.[385] He watched beheading videos and discussed them with other members of the organisation,[386] and watched and promoted other propaganda videos;[387]

• Sayadi acted in conjunction with Benbrika in attracting Merhi to membership of the organisation.[388] He also assisted Benbrika in dealing with Bassam Raad[389] and Atik.[390] He urged Benbrika to assign roles to particular members of the organisation,[391] and he urged more work and discipline in the jema'ah;[392] and
• Sayadi was also involved in raising funds for the organisation. He was a reliable contributor to the sandooq[393] and played an active role in encouraging the raising of funds.[394] He was also concerned about the flow of funds into and the balance of the sandooq.[395] He suggested ways to conceal the sandooq and its nature and purpose,[396] and
• discussed expenditure from it;[397] he also participated in and supported thefts and frauds to raise funds for the organisation.[398]

550 Sayadi's understanding of the nature of the organisation and its purposes was further supported by evidence of conversations in which he participated about the rewards 'when you do something',[399] his hatred of the kuffar for what they are doing to the Muslims,[400] his belief that the true meaning of jihad was fighting the kuffar,[401] and his references to the jema'ah as a terrorist organisation.[402]

551 Four factors in particular have affected the consideration of the sentence appeals, as follows:

1. The quashing of the possession convictions against Benbrika and Joud meant that each fell to be re-sentenced whether or not any other ground of appeal succeeded.
2. Contrary to the decision of the trial judge, we have concluded that the history and nature of the terrorist organisation is relevant to the objective seriousness and moral culpability of an offence of being a member of the organisation. Having regard to that factor, and to the maximum of ten years fixed by Parliament, we have concluded that the sentences on the membership counts were excessive.
3. In some instances, the offences overlapped. That is, some of the conduct relied on to support one count also supported another count against the same person. Adjustment of sentences was necessary to ensure that the offender was not doubly punished for the same conduct. In the case of Benbrika, the overlapping offences were those of being a member, and being the director, of the organisation. In the case of Joud and A. Raad, the overlapping offences were those of being a member of, providing resources to, and attempting to provide funds to, the organisation. (The 'resources' offence was committed by each man's having provided his own services to the organisation as part of

the leadership group.) In the case of Sayadi, the overlapping offences were the membership and 'resources' offences.

1. Appropriate relativity of sentencing between co-offenders is a fundamental aspect of equality before the law. Once it became necessary to re-sentence Benbrika and Joud, these considerations of equal treatment necessitated adjustment of the sentences imposed on co-offenders for the same offences.

552 As noted at the outset, Benbrika was sentenced as follows:

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally directing the activities of a terrorist organisation, knowing that it was a terrorist organisation (s 102.2(1)).

Possession of a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4(1)).

553 For the reasons earlier given, the conviction on count 12 must be quashed. The sentencing discretion is thus re-opened. In exercising the discretion afresh, it is appropriate to take into account the submissions which were advanced in support of the application for leave to appeal against sentence. They were as follows:

1. the trial judge was in error in sentencing Benbrika on the basis that the history of the organisation was irrelevant to the objective seriousness of the offence of being a member of the organisation;

2. the trial judge erred by failing to give sufficient weight to the very onerous conditions under which Benbrika was held in custody awaiting his trial, and to Benbrika's mental condition;

3. the trial judge doubly punished Benbrika by imposing as large individual sentences as his Honour did on counts 1 and 2;

4. the trial judge erred in setting a non-parole period of more than 75 per cent of the total effective sentence, given that Benbrika had no prior convictions and is middle aged; and

5. the individual sentences and non-parole period are manifestly excessive.

554 As to the significance of the history of the organisation, the trial judge said that:

There is no reason why the history of an organisation should determine the seriousness of the offence of joining it. The offence is committed by joining an organisation which has the characteristics of a terrorist organisation set out in the statute. It is an element of the offence that the member knows that the organisation is a terrorist organisation. Once that element is proved it is the level of risk to the community created by the existence of the organisation which determines the objective seriousness of belonging to it, not whether it is or is not a declared organisation.[403]

With respect, we do not entirely agree. In our view, the history of an organisation is relevant to both the objective seriousness of an offence of being a member of the organisation and the moral culpability of the offender.

555 So far as objective seriousness is concerned, the history of the organisation is relevant because it informs the nature of the organisation. The definitions of 'terrorist organisation' and 'terrorist act' are extraordinarily broad. Therefore, on the one hand, a 'terrorist organisation' may include anything from a rag-tag collection of malcontents whose commitment to terror never advances further than a conception that one day, some time, they will undertake a 'terrorist act' of as yet undetermined nature and scope. On the other hand, it may include a 'terrorist organisation', like Al Qaeda or Jema'ah Islamiah, with a proven record of committing the worst terrorist acts imaginable and, presumably, with more of the same in constant planning and preparation. Axiomatically, the activities of the former class of organisation are less likely to result in the commission of a terrorist act than the latter. Thus, other things being equal, the objective seriousness of an offence of joining the former kind of organisation is likely to be eclipsed by the objective gravity of subscribing to the latter.

556 So far as moral culpability is concerned, the history of the organisation is relevant because it may say something about the way in which prospective members are attracted to the organisation and, therefore, about their state of mind. For example, with an organisation of the former kind, it is possible that an offender may join the organisation in a state of uncertainty or confusion. They may thereafter have been seduced by a process of indoctrination to embrace the terrorist philosophy and objectives of the organisation. With an organisation of the latter variety, however, logic and common sense imply the probability that the offender will be committed to the terrorist philosophy and objectives of the organisation before being admitted to its membership, and so they go into it with their eyes wide open. Without wishing to be prescriptive about it, we think the difference provides a basis to say that an offender of the former kind is less morally culpable than the latter.

557 We do not suggest that the criminal culpability involved in the membership of a terrorist organisation is ever to be regarded as less than very serious, even where the activities of the organisation go no further than acts preparatory to the commission of a terrorist act.[404] Nor do we overlook the vital importance of denunciation and general deterrence in sentencing offenders for offences of this kind. Nevertheless, Parliament has made the offence punishable by a maximum penalty of ten years' imprisonment, which implies that sentences of close to ten years are reserved for the worst kinds of cases. From that, one may infer that it was intended there be scope for the recognition of a range of objective seriousness and moral culpability. It would be wrong in principle to ignore the range of penalty which that entails.

Conditions under which Benbrika was held in custody pending trial

558 There is nothing in the point about the conditions in which Benbrika was held in custody. The trial judge dealt with the nature and effect of those conditions in his ruling given on 20 March 2008.[405] His Honour also declared in his sentencing remarks that he proposed to take them into account and to consider the hardship to which the Benbrika would be subject while serving his sentence.[406] The length of the sentence which his Honour imposed does not suggest that he failed to give adequate weight to either consideration.

Double punishment because of the sentences imposed on counts 1 and 2

559 We see nothing of substance in the contention that the trial judge doubly punished the applicant by imposing the sentences which his Honour did on counts 1 and 2. Perhaps in purely theoretical terms, it was not sufficient to make the sentences on counts 1 and 2 wholly concurrent to allow for the fact, as his Honour put it, that 'the elements of [count 1] are practically, if not legally, wholly subsumed within [count 2]'.[407] In point of principle, it could be argued that it was also necessary to reduce the amount of the individual sentence imposed on count 1 in order to reflect the extent to which its criminality was subsumed in count 2. In reality, it would not have made the slightest difference to proceed in this way as the trial judge ordered that the two sentences be served wholly concurrently. Furthermore, because of the requirements of parity, there was good reason for his Honour not to reduce the sentence imposed on count 1 below the level which properly reflected the nature and gravity of the offence standing alone.

560 We reject this point. The trial judge's sentencing remarks make clear his Honour's concern as to the applicant's obdurate lack of remorse and contrition, and the zealotry of his continuing devotion to the cause of violent jihad.[408] As his Honour rightly said, with such a prisoner the object of community protection is reason in itself for a longer than normal non-parole period. Indeed, in some cases it will be reason not to set any non-parole period.

561 That said, we are persuaded that the sentence of seven years' imprisonment imposed on Benbrika on the count of being a member of a terrorist organisation was manifestly excessive. For the reasons earlier set out, we consider that a sentence of that order (representing 70 per cent of the maximum penalty of ten years' imprisonment) should be reserved for cases close to the most serious instances of the offence. Despite the gravity of Benbrika's offending, this was not such a case. Certainly, he was a member of the organisation for the whole of its existence, and the objective seriousness of his membership and his moral culpability in relation to it were greater than for any other offender. However, in relative terms, this organisation was towards the lower end of the scale of seriousness. Therefore, the

sentence to be imposed on Benbrika for being a member of it should accord to that relativity.

562 So to say is not to overlook that he was the founder and principal of the organisation. It is also not to overlook that his actions were more far reaching than in the case of any other offender.

563 Those matters, however, go to the sentence to be imposed for the offence of directing the organisation. To avoid double punishment, Benbrika's leadership of the organisation must be excluded from consideration when sentencing for the offence of being a member of the organisation. Approaching the matter in that way, we conclude that a sentence of five years' imprisonment (representing 50 per cent of the maximum penalty) should be imposed.

564 We take the same view as the trial judge, however, as to the sentence to be imposed on the count of directing the activities of a terrorist organisation. On any rational analysis, the objective seriousness of Benbrika's actions in convincing impressionable prospective members of the organisation to the way of violent jihad, and his moral culpability in fomenting the misconceptions and hatred which sustained their interest in the organisation and its activities, were at the high end of the scale of seriousness.

565 Ironically, despite the vehemence of Benbrika's commitment to violent jihad, the evidence suggests that he was a procrastinator. Fortunately for all concerned, that meant that the organisation never got to the point of committing a terrorist act before it was shut down. However, as the evidence also showed, it would surely have done so had it not been shut down. Benbrika was pivotal as to when and what that act would be, and it is on that basis that he stood to be sentenced. For his acts in developing and sustaining the organisational capability to commit a terrorist act when he determined, the sentence of 15 years' imprisonment was appropriate.

566 All individual sentences are to commence on 3 February 2009. This makes a total effective sentence of 15 years' imprisonment.

567 We also see nothing questionable about the non-parole period of 12 years. In the face of Benbrika's intractable adherence to the cause of violent jihad, and the consequent need for denunciation, general deterrence, specific deterrence and community protection, a non-parole period of that order was unavoidable.

568 As noted earlier, Aimen Joud was sentenced as follows:

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)).

Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)).

Possession of a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4(1)).

Possession of a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4(1)).

569 For the reasons earlier given, the convictions sustained by Joud on counts 7 and 8 must be quashed. Thus the sentencing discretion is re-opened.

570 On count 1, we think that the sentence imposed by the trial judge was excessive. The nature and gravity of Joud's membership of the organisation were significantly less than Benbrika's, as was his moral culpability. Joud was very young and, although a member of the consultative committee of the organisation, it is apparent that he was in thrall to Benbrika. We propose to re-sentence him on count 1 to four years and six months' imprisonment.

571 As to count 6 we also take a different view from the trial judge. The objective gravity of Joud's offence of attempting to provide funds was, in our view, more towards the lower end of the range than a sentence of eight years implies. We think that five years' imprisonment is sufficient to reflect the nature and gravity of that offending. It also takes account of the that there is an overlap between the criminality involved in count 1 and that subsumed by count 6. The sentences imposed on counts 1 and 6 should be served concurrently.

572 Contrastingly, with respect to count 3, we see no reason to disagree with the sentence of eight years' imprisonment imposed by the trial judge. Notwithstanding that Joud was particularly young - between 19 and 21 at the time of offending - and, as we have observed, in thrall to Benbrika, there was no evidence at the time of sentencing (or on appeal to this Court) of any contrition or remorse on Joud's part. Even more concerning is that there was no evidence that Joud had abandoned his commitment to violent jihad. To the contrary, at the time of sentencing, there was positive evidence (in the form of comments made by Joud to psychiatrist, Dr Danny Sullivan) that Joud remained committed to the ideal of being a terrorist.

573 Counsel for Joud submitted that the trial judge had taken the remarks made to Dr Sullivan out of context and used them unfairly against Joud. He also submitted that his Honour had failed to take into account evidence given at trial that Joud's commitment to the organisation had waned over the term of his membership. It was said that his Honour failed to accept the interconnection between Joud's youth and his offending, and that he failed to allow for the harshness of the conditions in which Joud was kept in custody awaiting trial and the effect of those conditions on him.

574 We reject those submissions. We do not accept that the trial judge took the remarks to Dr Sullivan out of context. If anything, we take the view that his Honour's treatment of them may have been overly fair to Joud. Nor do we accept that it was established that Joud's interest in the organisation waned over time. As will be apparent from our analysis of Joud's application for leave to appeal against conviction, the evidence showed that Joud remained active and committed to the organisation until his arrest.

575 So far as Joud's youth and conditions of detention are concerned, the trial judge dealt at length with both points, balancing them, as he was bound to do, against the requirements of specific deterrence and community protection.[409] We agree with his Honour that there was little which the Court could take into account in Joud's favour on the issues of rehabilitation, specific deterrence and the protection of the public.[410] It could only be hoped that the length of sentence would be sufficient in itself to disabuse Joud of his misconceptions and thereby achieve the aims of rehabilitation and protection of the public which imprisonment is intended to accomplish.

576 All individual sentences are to commence on 3 February 2009. Therefore, the total effective sentence imposed on Joud will thus be reduced from ten years' imprisonment to eight years. We shall fix a new non parole period of six years (the latter being a slightly greater than normal proportion of the total effective sentence because of Joud's poor prospects of rehabilitation).

577 It should be noted that Fadl Sayadi did not lodge an application for leave to appeal against sentence.

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)).

579 There was no evidence before the trial judge (and none was tendered to this Court) that Sayadi had altered his views on violent jihad. His Honour concluded, therefore, that the sentence to be imposed needed to be greater than would otherwise be the case in order to provide adequate specific deterrence and protection of the public. We do not disagree. However, given the need to re-sentence Benbrika and Joud, parity dictates that Sayadi's sentence be reconsidered.

580 Although Sayadi was one of the 'elders' of the organisation, his involvement was still less than Benbrika's or Joud's. Thus, to achieve parity with the sentences imposed on them, we consider that Sayadi should be re-sentenced on each of the counts of which he was convicted.

581 On count 1, the count of being a member of the organisation, we propose to re-sentence him to four years and six months' imprisonment. On count 5, the count of providing resources to the organisation, we propose to re-sentence him to seven years' imprisonment. Both sentences are to commence on 3 February 2009. That will result in a total effective sentence of seven years' imprisonment. We shall fix a non-parole period of five years and three months.

582 Abdullah Merhi was convicted of one count of being a member of a terrorist organisation pursuant to s 102.3(1). He was sentenced to six years' imprisonment with a non-parole period of four years and six months. His role in the organisation was less than Sayadi's, and he was younger than Sayadi. Consequently, we assess the objective seriousness and moral culpability of his offending as less than Sayadi's.

583 Counsel for Merhi submitted that the trial judge erred in failing to take into account the history of the organisation. We have dealt with that point already in relation to Benbrika. We agree that the sentence imposed on Merhi should be reduced to some extent to reflect the fact that the organisation did not have a history of actually carrying out terrorist acts.

584 Counsel also argued that the trial judge erred in failing to take into account what he described as the 'brief period' of Merhi's membership of the organisation, and in finding that Merhi had not renounced violent jihad.

585 We do not think that there is anything in either of those points. We dealt with the former when considering Merhi's application for leave to appeal against conviction. It rises no higher than the submission put, and rejected, at trial that his

Honour should have left to the jury the possibility that Merhi withdrew from the organisation in mid 2005.

586 As to the latter, the trial judge dealt at length with the submission put below that Merhi should be found to have renounced violent jihad. He rejected it for a variety of reasons[411] in a manner which we think to be wholly persuasive.

587 Finally, counsel contended that, for whatever reason, the trial judge erred in failing to pay sufficient heed to what counsel contended were Merhi's 'excellent prospects' of rehabilitation. That point has no merit either. As his Honour said, the contention that Merhi had good prospects of rehabilitation was predicated on the submission, which his Honour rejected, that Merhi had renounced violent jihad.[412]

588 It remains to re-sentence Merhi in order to achieve parity. We propose to re-sentence him to a four years' imprisonment, that sentence to commence on 3 February 2009. We shall fix a non-parole period of three years. We note that the latter is a longer than usual non-parole period because of the trial judge's finding that there was no evidence of Merhi having renounced violent jihad, and because of the resultant need for greater specific deterrence and protection of the public.

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)).

Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)).

590 Ahmed Raad was an important member of the organisation. He was its treasurer and, relatively speaking, one of its more mature members. He was 23 at the time of offending, and 25 at the time of sentencing.

591 At the time of sentencing, the trial judge was not persuaded that Ahmed Raad had renounced violent jihad. Consequently, his Honour regarded specific deterrence and protection of the public, as well as general deterrence, as being foremost among sentencing considerations. We agree with that conclusion.

592 Counsel for Ahmed Raad argued that the trial judge failed to give any, or sufficient, weight to his psychological problems and that his Honour was in error in treating the need to avoid disparity as a sufficient reason not to do so. It was also submitted that his Honour erred in failing to give sufficient weight to the arduous conditions under which the sentence would be served. Finally, it was submitted that the individual sentences, the total effective sentence and the non-parole period were all manifestly excessive, having regard to Ahmed Raad's age, absence of prior convictions, stable family life and support, solid work history and the emotional difficulties to which he had been subject as a result of his brother's death in 2003.

593 Those submissions are not persuasive. The trial judge dealt with Ahmed Raad's psychological difficulties and made allowance for the harsh conditions of his incarceration.[413] As his Honour observed, however, each of the other applicants was subject to similar conditions and some, if not all, of them were likely to suffer from similar psychological difficulties as a result of those conditions.[414] In those circumstances, his Honour reasoned, it would create an injustice if Ahmed Raad received not only the benefit of the allowance for the harshness of conditions allowed in favour of each of the other applicants, but also a further allowance because of his own psychological reaction to those conditions. We so no error in that.

594 The trial judge took into account as mitigating considerations all of Ahmed Raad's personal circumstances and antecedents, and the hardship which his incarceration was likely to impose on his family. However, as his Honour said, he was unable to find that Ahmed Raad had renounced violent jihad. Consequently, his Honour regarded himself as bound to impose a sentence which would deter others from the path of violent jihad, which would specifically deter Ahmed Raad from engaging in that sort of activity when he was released from gaol, to denounce terrorism in all its forms, to punish Ahmed Raad for the major role which he played in the organisation and, above all, to protect the public. We entirely agree.

595 It is necessary to make some adjustments to Ahmed Raad's sentence, however, on the basis of parity.

596 Relatively speaking, we equate the objective seriousness and moral culpability of count 1 (his offence of being a member of a terrorist organisation) to the objective seriousness and moral culpability of Joud on that same count. Parity thus dictates that we re-sentence Ahmed Raad on count 1 to four years and six months' imprisonment.

597 As to count 4 (intentionally providing resources), we share the trial judge's view that it was necessary to impose a sentence of eight years' imprisonment and, since there is no evidence of any change in circumstances since Ahmed Raad was sentenced, we propose to re-sentence him on count 4 to eight years' imprisonment.

598 As to count 6, however, we take the view that the objective gravity of the offending (attempting to make funds available) was more towards the lower end of the range than a sentence of eight years' imprisonment implies. As with Joud, we consider that a sentence of five years' imprisonment is sufficient to reflect the nature and gravity of the offence and the fact that there is an overlap between the criminality involved in count 1 and that subsumed by count 6. The sentences on counts 1 and 6 should be served concurrently.

599 All individual sentences are to commence on 3 February 2009. In the result, the total effective sentence imposed on Ahmed Raad will be reduced from ten years' imprisonment to eight years. As with Joud, we shall set a new non-parole period of six years.

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)).

601 Counsel for Ezzit Raad advanced four propositions in support of his application for leave to appeal against that sentence. The first was that the trial judge had erred in failing to take into account that the organisation had no history of acts of terrorism. We have dealt with that in relation to Benbrika and we accept that the history of the organisation does warrant some adjustment of the sentence imposed on count 1.

602 Secondly, that the trial judge had given insufficient weight to the arduous nature of the conditions in which Ezzit Raad had been kept in custody awaiting trial, and to the possible conditions under which he would serve his sentence. We have already dealt with similar contentions in relation to other applicants. For the reasons given there, we reject this submission.

603 Thirdly, that the individual sentences, the total effective sentence and the non-parole period were all manifestly excessive. Subject to the one qualification concerning the sentence imposed on count 1, to which we have already referred, we reject that contention.

604 The trial judge found that Ezzit Raad's participation in the activities of the organisation, and his involvement in the attempt to provide funds to the organisation, were less than Ahmed Raad's. In order to maintain appropriate relativity of sentences, we propose to reduce the sentence imposed on Ezzit Raad on count 1 to four years' imprisonment, and the sentence imposed on count 6 to four years' imprisonment. The sentence imposed on count 1 is to commence on 3 February 2009. The sentence imposed on count 6 is to commence on 3 February 2011. That makes a total effective sentence of six years' imprisonment. We shall fix a non-parole period of four years and six months.

605 Amer Haddara was convicted of being a member of a terrorist organisation pursuant to s 102.3(1). He was sentenced to six years' imprisonment with a non-parole period of four years and six months.

606 The trial judge found that Haddara did not become a member of the organisation until 17 September 2005. Therefore, he was a member of the organisation for only a few weeks before being arrested. However, as with the other applicants, there was no evidence that Haddara had renounced violent jihad.

607 Counsel for Haddara advanced two grounds of appeal against sentence. The first, like other applicants, was that his Honour had erred in failing to take into account the past history and relatively shambolic nature of the organisation. The second, that the sentence and the non-parole period were manifestly excessive.

608 As already indicated, we think that there is some substance in the first point, and we propose to reduce the sentence accordingly. In order to maintain appropriate relativity with the sentences imposed on other applicants, we have concluded that Haddara should be re-sentenced to four years' imprisonment. We shall fix a non-parole period of three years.

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally directing the activities of a terrorist organisation, knowing that it was a terrorist organisation (s 102.2(1)).

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)).

Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)).

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).

Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)).

Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)).