Dirani v R

Background

1. Prior to the commencement of the Crown's closing address, Senior Counsel for the applicant foreshadowed a concern that unrecorded conversations between the applicant and Mr Alou would be suggested by the Crown to relate to the alleged conspiracy, submitting that such a suggestion was "entirely conjectural" and would invite the jury to draw inferences where such inferences could not be justified.
2. In response, the Crown stated that he would not be submitting to the jury that the jury could infer that the conversations which were not recorded were about any particular topic, rather to respond to the defence position that had been put to a number of witnesses that there were no communications other than those which had been recorded.
3. The trial judge made the following ruling: "Senior counsel for the accused has made oral application for the Crown to be restricted in a particular respect in its closing address to the jury. The application, as recorded in the submissions in the transcript, is that the Crown ought not be able to make submissions to the jury that there may have been other communications, particularly between Mr Raban Alou and the accused, at other times than those times as to which there is positive evidence of such communications in the absence of any evidence to justify the inference that other conversations took place. Senior counsel for the accused expanded on that application. The Crown responded, opposing the giving of such a direction to the Crown. This is a case where there is a substantial volume of evidence of communications between the accused and other persons and, indeed, between other persons who are said to be involved in the alleged offences with which the accused is charged. There is a substantial volume of telephone intercept and listening device evidence, as well as a substantial volume of evidence of electronic communications by the accused and others on the WhatsApp Bricks forum, together with other evidence. In addition, there is video surveillance evidence of events on 2 October 2015 when the accused was present in Warwick Road, Merrylands, and at the Merrylands Oval car park with Raban Alou when they had, on the face of it, conversations which were not recorded. This is not a case where, for example, it could be said that in a period of a day absolutely everything that was said between certain people was intercepted so that one can say that there is nothing more that could have been said. The evidence shows that over a number of days there were movements, meetings, communications between persons, including the accused. What the Crown seeks to submit is that on occasions there were other opportunities for contact and communication, including, for example, what the accused and Mr Alou apparently said to each other in the street in Warwick Road, Merrylands, and whilst sitting on a wall in the Merrylands Oval car park. The Crown is not seeking to submit to the jury that particular things were said on particular occasions by or to the accused, but it is not the case that it can be said that there was no opportunity for contact, communications between the accused and others, in what are important periods in this trial. The Crown has pointed as well to some evidence of Wickr, which apparently was a facility available to the accused which allows the deletion of material. That is, as I recall the evidence, as far as that evidence goes. It is open to the Crown, in my view, to submit to the jury that there were other opportunities for communications and to remind them of the evidence concerning Wickr. That is for the purpose of seeking to rebut a submission that may be made for the accused that the totality of the communications between the accused and others is effectively before the jury and if they do not have it in evidence, then it did not or could not have happened."
4. No challenge was made to the ruling on the appeal.
5. Thereafter, the Crown addressed the jury. Of relevance are the following remarks: "Members of the jury, before I move from the facts I want to just say something very briefly in relation to what I expect will be said by Mr Tedeschi concerning the police holdings concerning recorded telephone conversations. I expect it will be submitted to you, 'Look, you have all of the recorded telephone conversations, you know everything that was said.' I suspect it will be suggested to you that because you have everything and there is an absence of anyone saying the word 'gun' or 'Farhad' to Mr Dirani, or '2 October in Charles Street', that from the absence of that being recorded, it simply wasn't said; Mr Dirani wasn't told any of those things. Firstly, can I say, the 1.53 conversation indicates that he was told some things. The 'thing', the 'who' and the 'when'. And then told the 'where'. So he was told some things in those coded conversations. I just want to make this submission to you in relation to the police holdings about what was said. We know that there are lots and lots of conversations that aren't recorded. Let's just deal with one of them. Stocklands Mall, Merrylands. We know that there is some communication about meeting up there. We know that there is some communication afterwards that Mr Dirani bought some shoes, apparently, and some supplements. You don't leave your common sense at home when you become a member of the jury. I want to submit to you that it is blindingly obvious that buying shoes and supplements is not mutually exclusive from having a chat with somebody. That is, if two people are in a mall together, it doesn't mean that you are only there to buy things and you don't talk. You can infer that Mr Alou and Mr Dirani, when they were in that mall, spoke to one another. We know that they spoke to one another outside because the police saw their mouths moving in the car park before they walked to the mall. We don't have a recording as to what was said in that mall or at any of the other meetings when they were away from their cars and not on their phones. So I'm not going to be submitting to you, 'Ahah, at that meeting the word 'gun' was said', because there is no evidence of it. But, equally, you can infer from the timing of that meeting that Mr Alou wanted to meet with Mr Dirani. Mr Dirani bought shoes for his own feet, not for Mr Alou's. He bought supplements for himself, not for Mr Alou. Why is Mr Alou there? Because he wants to meet with him. The meeting was important, between Alou and Dirani. The location, it seems, wasn't that important. There was some discussion of it, 'Well, where do you want to meet?' Eventually, they decided Stocklands Mall, Merrylands. I'm telling you all of that for this reason: don't be led into thinking that that meeting was only about shoes and supplements and that they discussed nothing else. We simply don't know. But you can infer, the Crown says, from the fact that this crescendo of activity was building up, you can infer from the fact that Mr Alou was under huge pressure at that time to get everything that he needed into the hands of Farhad Mohammad shortly after Shadi left the country, you can assume that this was at the very forefront of his mind. The same for the discussion on the wall at Merrylands Oval. We don't know what was said and I can't submit to you that at that time the word 'terrorism' was said or the word 'gun' was said or the word 'Farhad' was said. We simply don't know what was said. But we do know they spoke. And in the context of what happened with Mr Alameddine, in the context of this crescendo, in the context of what Mr Alou was focused on at that point in time, you can infer that there was some discussion that went on there that required them to move away from the cars. Members of the jury, we also know, don't we, that Mr Dirani not only had this application, Wickr, but he encouraged other members of the Bricks group to download Wickr, and we know that Wickr is one of those applications where the messages can be set so that messages are automatically deleted after a period of time. Now, there is no evidence to suggest that Mr Alou or Mr Atai downloaded Wickr. But we do know that Mr Dirani had it. We do know that Mr Dirani encouraged others to use it. We can infer from that that there are ways for people to communicate with one another that the police simply cannot see after the event because the message evaporates after a period of time. We also know, don't we, that there are lots of opportunities for face-to-face meetings that the police don't even know about. The police aren't recording mouths moving up and down; certainly not recording the voices. There are lots of opportunities. In the lead-up to 2 October, before the surveillance cameras are following these people and pointing at these people, lots of opportunities. Macquarie University, we know, was one such meeting. So although the police have done an extraordinary job - an extraordinary job - in relation to this investigation, we don't know everything that was said. It simply cannot be submitted to you that there is evidence that the word 'gun' was never said, the word 'terrorism' was never said and the words 'Farhad Mohammad' were never said."
6. The trial judge early in his summing-up told the jury that it was important that the jury did not speculate or guess. His Honour also gave the following specific direction: "The Crown submitted that although there were many recordings in this case, not everything was recorded, so you need to be careful with submissions concerning whether there were opportunities for the accused and others to speak about matters. You must, of course, have regard to the evidence in the trial in reaching a verdict. I said to you yesterday you must not speculate about matters, and I remind you of that with respect to that issue. You were reminded of the Wickr aspect, that the accused apparently had a Wickr application which had a capacity to delete. There is no evidence that Alou and Atai had such a facility."
7. It should be noted that no objection was taken of the Crown's address nor any further directions sought.

The submissions

1. Counsel for the applicant referred to the submissions by the Crown concerning the meeting which took place at Stocklands Mall. It was accepted the Crown was entitled to say to the jury that they should not speculate into thinking the meeting was only about shoes and supplements and that they discussed nothing else. However, he submitted that the reference to a "crescendo of activity" building up and the statement that that was at the forefront of Mr Alou's mind was a matter in respect of which there was no evidence and it fell foul of the direction given by the trial judge.
2. Similar submissions were made with respect to the Crown's references to "gun" and "Farhad" in dealing with the conversation on the wall at Merrylands Oval. No objection was taken to the prosecutor's statement that he could not submit that the word "terrorism" was said, or the word "gun" or the word "Farhad" was said. However, counsel for the applicant said the remarks which followed this comment placed in the jury's mind that the discussion was about the conspiracy.
3. The Crown submitted that it was open to suggest to the jury that there were other opportunities for the applicant and Mr Alou to communicate.
4. The Crown submitted that the way the submission was put did not suggest that something could be inferred about what was actually said, although at the hearing the Crown accepted it may have come close to that. It was submitted that the Crown was not inviting the jury to speculate about the content of the conversations, but simply pointing out that the jury could not act as if every single conversation and exchange between the applicant and Mr Alou was before them.
5. The Crown pointed out that there was no objection or challenge made to what was said at the trial. It also pointed out that the final part of the address, to which I have referred at [11] above, brought the matter back to the point that it could not be submitted that no further conversations took place.

Consideration

1. If what was done by the Crown was in fact to invite the jury to speculate that in the conversations which were unrecorded the applicant and Mr Alou discussed the conspiracy, including the obtaining of a gun and the involvement of Farhad Mohammad, then such an invitation would invite impermissible speculation, which potentially could give rise to a miscarriage of justice (see Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 at [31]-[32]).
2. However, it is not challenged that the Crown was entitled to respond to the proposition put that there were no communications other than those recorded. Nor is there a challenge to the ruling by the trial judge that the Crown was entitled to submit to the jury that there were other opportunities for communications, and to rebut a suggestion that the totality of the communications between the applicant and Mr Alou was effectively before the jury and that if they were not in evidence then they did not or could not have happened.
3. It seems to me that ultimately the Crown did not go outside the ruling given by the trial judge, nor did it invite the impermissible speculation complained of. The passages in the closing address complained of were introduced by the remark that it was expected to be submitted that the absence in the recorded conversations of anyone saying the word "gun" or "Farhad" to the applicant is such that it could not have happened. The concluding portion of this section of the Crown's address makes the same point.
4. The focus of the complaint was the reference to the fact that the "crescendo of activity" was building up and the statement that Mr Alou was under "huge pressure". On balance, I do not think that submission invited the jury to speculate that the unrecorded conversation in question concerned the conspiracy. Rather, the prosecutor was forcibly putting the point that there were conversations between Mr Alou and the accused which were not recorded, such that the jury could not be satisfied that the evidence of all conversations was before them and thus accept there were no conversations concerning the conspiracy. In that context, the address may be contrasted with the evidence of CIN 1877, the subject of ground 3.
5. It would have been preferable that reference had not been made to the "crescendo of activity" or Mr Alou being under "huge pressure". However, I do not think that these remarks taken in context lead to the result complained of. First, because the opening and closing portion of that part of the address indicated that it was designed to emphasise that not all the conversations were before the jury. Second, the agreed facts show in any event that the activities of Mr Alou on 2 October 2015 could well be described as reaching a "crescendo".

Ground 3: His Honour erred in permitting CIN 1877 to give expert evidence of his opinion as to the applicant's manner of driving on 2 October 2015

1. CIN 1877 was a police officer who claimed to have expertise in surveillance and counter-surveillance techniques. He gave evidence by reference to various photographs and video footage to the effect that the activities of the applicant on 2 October 2015 were consistent with him conducting surveillance and counter-surveillance on behalf of Mr Alou.
2. It was not disputed that CIN 1877 had expertise in the field of surveillance and counter-surveillance. Rather, it was asserted that the Crown had not established that CIN 1877's opinions were based on his expertise and second, that there was prejudice to the applicant on the basis of a "white coat effect" of someone providing expert evidence regarding the applicant's movements when these movements were readily observable by a jury.

The evidence given by CIN 1877

1. As I indicated, CIN 1877 was a police officer. So far as his qualifications and experience were concerned, he stated that since about 2002 "on and off" he had been involved in full-time surveillance and part-time surveillance work. He stated that he had been involved in full-time surveillance work from about 2006.
2. CIN 1877 stated that he was the Operations Coordinator at the State Surveillance Branch. He said that in that capacity he deployed surveillance teams attached to the State Surveillance Branch on a daily basis. He said that during his career he had been a surveillance operative on the ground as a constable and a surveillance team leader as a sergeant prior to his present position as Operations Coordinator as a senior sergeant. He stated that as a result he had extensive experience in the area of surveillance. He also stated that he did the detectives education program through the New South Wales Police and completed the degree of Bachelor of Policing Investigations. He stated that he completed the Australian Federal Police National Surveillance course in 2006. He also stated that in 2010 he completed the Australian Federal Police Advanced Surveillance program, which he described as a program targeted at team leader level for full-time surveillance units from various agencies from around Australia and some internationally. He said that the program involved training in the use of, the detection of, and the planning for anti-surveillance and counter-surveillance techniques.
3. CIN 1877 gave evidence as to what he meant by anti-surveillance and counter-surveillance. He described anti-surveillance by way of an example in the following terms: "A. So, for instance, if I'm driving, say - not sure whether I've been followed or something like that and I want to get away from somebody, it might be the case that I come up to a set of traffic lights and that they are red, but I push through them, push through the red light and everyone else behind me has stayed there because it's still red. It's an overt action that sort of an aggressive action to be able to get away or identify anyone that actually comes through with me, so, 'Oh, well, what's going on there? They followed me through.' So it's generally an overt act that we can actually see what's happening."
4. He defined counter-surveillance as follows: "A. Generally it is a covert act that you don't always see that is actually happening. So it might be the case that - again, if I can provide an example - whereby I want to go from, I think I can use the example of I want to go from location A to location B. Now, the direct route may be, for example, might be straight on the M4 to get home, say, if I wanted to go from Parramatta to Penrith. But for us it - go down to the M4, on to the M4 out to Penrith, but by doing counter-surveillance you might take different routes that only you know, you have pre-planned them. If someone else is doing the same thing as you, you might identify them as being - as following you and you would be able to identify that. It might be - but it is generally an act that you generally don't see all the time. Not always the case but generally an act that you don't see. Again, to try and identify whether you are being followed or someone's following you."

The voir dire

1. Prior to the first occasion that the applicant was tried for this offence, a voir dire was held to determine the admissibility of the proposed evidence of CIN 1877.
2. A statement prepared by CIN 1877 was tendered at the hearing. Although the Crown submitted that the evidence on the voir dire was somewhat different to that ultimately given by CIN 1877 at the second trial, the differences do not seem to me to be material.
3. The trial judge ruled the evidence was admissible.
4. In his Honour's judgment, R v Dirani (No 6) [2018] NSWSC 891 (judgment on the voir dire or voir dire judgment), the trial judge identified at [115] that the issue to which the evidence went was whether the conduct of the applicant on the afternoon of 2 October 2015 amounted to an act in furtherance of the alleged conspiracy. His Honour stated at [117] that he was satisfied that CIN 1877 had specialised knowledge based on his training, study and experience in the field of surveillance. The trial judge concluded at [118] that although members of the public and the jury may have some basic understanding of avoidance action, the specialised knowledge of CIN 1877 concerning counter-surveillance and anti-surveillance measures goes far beyond the type of understanding which members of the public might possess. In that context, his Honour made the following remarks at [119]: "[119] The decision of the Court of Criminal Appeal in R v Kingswell demonstrates that specialised knowledge such as that possessed by CIN 1877 may be applied for the purpose of s.79(1). This area of specialised knowledge is to be distinguished from common knowledge. Although ordinary members of the public (and members of the jury) may be able to form suspicions or otherwise speculate concerning the movement of persons and vehicles in this case at different locations over a period of time, CIN 1877's specialised knowledge allows the expression of opinions concerning these events which are relevant and probative concerning facts in issue in the trial. The first condition under s.79(1) is satisfied in this case."
5. The trial judge also stated in his judgment that he was satisfied that CIN 1877's opinions were at least based substantially on his specialised knowledge based on his training, study and experience. His Honour stated that the fact that the evidence also related to "observations and knowledge of everyday affairs and events" did not render it inadmissible (R v Dirani (No 6) at [120]). His Honour also stated at [122] that there was no impediment to the admissibility of the evidence that CIN 1877 was working from a video and documents without personal attendance at the various locations involved.

a The applicant

1. In his written submissions, the applicant accepted that although CIN 1877's expertise is not in a traditional area of knowledge, his experience and training would be sufficient for him to be considered as an expert in his field. It was also acknowledged that no objection was taken to the relevance of his evidence.
2. The applicant stated that the conclusion reached by the trial judge at [119] of his Honour's judgment on the voir dire was not challenged. However, it was submitted that R v Kingswell (Supreme Court (NSW), Smart, Studdert and Hidden JJ, 2 September 1998, unrep) ("Kingswell"), on which the trial judge relied, was decided before the decision of the High Court in Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 ("Honeysett") and Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 ("Smith"). It was also submitted that Kingswell was different from the present case in that the officer providing the opinion in Kingswell was in fact the only witness to the events in question, and it was necessary for the evidence to be given to understand the significance of what the officer had noted.
3. It was submitted in the present case that the evidence, to the extent it attributed motive to the applicant's conduct, was not based on any expertise, referring by way of example to the evidence to which I have referred at [39], [40], [41], [42], [48]-[50] and [52] above.
4. The submissions referred to the remarks made by the trial judge at [127] of his Honour's judgment on the voir dire. I have referred to these remarks at [59] above. It was submitted that what was said there by his Honour identified the reason that the evidence should not have been admitted. It was submitted that the conclusion of the trial judge was in effect that without the evidence, the jury might have thought that what was being done was unusual or odd. It was stated that that was the applicant's case, and that the jury would be able to judge for themselves whether what occurred was consistent with surveillance or just odd. He submitted that in those circumstances the evidence was "merely gratuitous commentary to factual observations".
5. At the hearing, counsel for the applicant submitted that the basis of the objection was that the evidence given by CIN 1877 was not based on his specialist knowledge. He submitted that it was difficult to see the expertise which the statement that people were travelling in convoy was based upon. He submitted that the officer used expressions which were artificial, giving examples of where someone is following a car, they are in "convoy", and someone in the vicinity being a "cockatoo". He submitted that the evidence was not based on the officer's expertise and could have been dealt with by the jury with the advantage of submissions. He submitted that CIN 1877 was no more than an advocate for the Crown.

b The Crown

1. The Crown in its written submissions submitted that no challenge was made to the trial judge's conclusion that CIN 1877 had specialised knowledge. It submitted that Kingswell remained good law and was not inconsistent with Honeysett, Smith or Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 ("Makita").
2. The Crown sought to characterise this ground of appeal as challenging the finding of the trial judge on the voir dire that the opinions expressed were based substantially on specialised knowledge because the jurors could themselves view the primary material and form their own opinions.
3. The Crown submitted that the applicant's argument should be rejected as first, CIN 1877's evidence clearly exposed the reasoning on which his opinion was based. Second, it was submitted that the applicant was able to give expert evidence on counter-surveillance techniques that allowed the jury to see what they would otherwise not see. Third, it was submitted that no issue was taken to the summing-up by the trial judge, in that the jury were told it could accept all, some or none of what was said by the expert. Fourth, it was noted that the Crown submitted in closing that the jury had a been to the locations in question during the course of a view and were in a better position than CIN 1877 to consider whether the applicant was conducting counter-surveillance or acting as a support person.
4. At the hearing, the Crown submitted that the challenge was to the ruling of the trial judge on the voir dire and it was impermissible to use the evidence at the trial to challenge that ruling.
5. The Crown submitted CIN 1877 exposed his reasoning by describing counter-surveillance and anti-surveillance. It submitted that the steps in his reasoning included making observations and recording behaviour. The Crown submitted that the ruling was made in accordance with Kingswell, which he submitted remained good authority.

Consideration

1. The admissibility of expert opinion evidence is governed by the provisions of s 79 and s 80 of the Evidence Act 1995 (NSW). So far as relevant, they are in the following terms: "79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. … 80 Ultimate issue and common knowledge rules abolished Evidence of an opinion is not inadmissible only because it is about - (a) a fact in issue or an ultimate issue, or (b) a matter of common knowledge."
2. As was pointed out in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 ("Dasreef") at [37], the admissibility of opinion evidence is to be determined by the requirements of the Evidence Act, rather than attempting to analyse particular statements in decided cases divorced from the context in which they were made. However, the plurality went on to make the following remarks: "[37] Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that 'the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded."
3. Section 80(b) of the Evidence Act makes it clear that evidence of an expert is not inadmissible merely because it is about a matter of common knowledge. However, that does not mean that the opinion of the expert must not be drawn wholly or substantially from the expert's specialised knowledge based on his or her training, study and experience. The remarks of Heydon JA in Makita, cited with approval by the High Court in Dasreef, makes this clear: "[85] In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of specialised knowledge; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'; so far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on assumed or 'accepted' facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen, on a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise'. See also Honeysett at [23].

a The evidence referred to in [39] above

1. The first part of the answer is simply a description of what occurred. It is not based on any expertise. The second part seems to me to amount to speculation. The suggestion that the applicant was watching out for the police or supporters of Mr Alameddine does not seem to be based on any particular expertise that CIN 1877 may have. It is speculation of the reason for the applicant's conduct, rather than a conclusion derived from CIN 1877's expertise. In my opinion the evidence was not admissible.

b The evidence referred to in [40] above

1. This evidence really goes no further than describing what could be observed from the video recording. The jury did not need expert evidence to determine why the applicant was following Mr Alou, particularly if they were informed by CIN 1877's description of what constitutes a "support network".

c The evidence referred to in [41], [42] and [43] above

1. The answers in [41], [42] and [43] above once again first describe where the applicant is parked in relation to Mr Alou's vehicle, something which emerges from the video footage and could not be said to be based on any knowledge, skill or experience. The series of rhetorical questions given by CIN 1877 in that answer amounts to speculation of what the applicant might be looking for. CIN 1877 does not identify how that evidence is based on his expertise. Further, although it may well be open to the jury to draw the same conclusion having regard to all the evidence at the trial, it is difficult to see without some further stated assumptions how an expert could draw that conclusion as the reason for the applicant's actions simply from the position of the two cars.

d The evidence referred to in [44], [45] and [48] above

1. The same may be said of the evidence to which I have referred in [44], [45] and [48] above. CIN 1877 again speculates what the applicant is doing, whether there is "a threat from police or others, or Mr Alameddine".

e The evidence referred to in [46] above

1. The evidence in [46] above once again is speculation or, at the very least, not based on any identified expertise.

f The evidence referred to in [49] above

1. Whilst acknowledging that the applicant had moved to a position which was not the best position for surveillance, CIN 1877 persisted in his view that the applicant was conducting surveillance, but did not base it on his expertise, merely making the comment "there's more to come as to what I think, but I still think he's being that support network for Mr Alou".

g The evidence referred to in [50] above

1. This evidence seems to me to be speculation. It makes the assumption, not based on any material available to the expert, that the applicant and Mr Alou believed there may have been listening devices in their vehicles.

h The evidence referred to in [51] above

1. This evidence plainly is not an expert opinion.

i The evidence referred to in [52] above

1. This evidence is a summary of what was said before. It suffers from the same difficulties.

j The evidence referred to in [53] above

1. So far as the evidence in [53] above is concerned, the question of whether the applicant could have improved his surveillance techniques is quite irrelevant.
2. In these circumstances, in my opinion, the evidence to which I have referred in the immediately preceding sub-paragraphs was inadmissible. First, to the extent that it records the applicant's movements on the day in question, the identification of these movements does not involve the application of any expert skill and judgment. Second, although it may have been appropriate for the jury to be informed of the nature of surveillance techniques, the evidence given did not have the additional degree of specialised knowledge that was referred to by Gummow and Callinan JJ in Velveski at [158] (set out at [75] above). Nor did the witness identify the expertise on which he concluded that the applicant was the lookout for threats posed by Mr Alameddine's associates or the police, or identify any assumption he made which entitled him to reach this conclusion. Indeed, on one view, his evidence seemed to be based on the assumption that Mr Alou was engaged in criminal activity and the applicant was there to assist him. CIN 1877 did not have a basis for making that assumption at the time he gave his evidence.
3. I do not think this conclusion is inconsistent with Kingswell. Kingswell concerned the evidence of an officer experienced in surveillance techniques who observed the accused driving and stated that what he observed the applicant doing amounted to counter-surveillance techniques. The relevant evidence in Kingswell was as follows: "A. That the fact that he looked in his rear view mirror on those two occasions, which I thought was more than the usual time to look in the mirror, the turns that were being made without indication, the differing speed of the vehicle, the route that was being taken, that the one time going along a road, turning down Isaac Smith Street and going back towards Bunnerong Road heading as if we were going back towards the city, and on to the roadway and then heading south and also going back through the side streets and heading back towards Anzac Parade again, that to me was another form of counter surveillance in relation to trying to see if there is anything around you."
4. That is quite different from the present case where the officer looked at video footage and not only expressed his view as to what was occurring but opined on the motivation for it. The evidence went well beyond the officer's expertise and, in effect, involved the presentation of the Crown case.

Ground 4: His Honour erred in permitting the Crown to tender issue 12 of the ISIS publication known as "Dabiq" in circumstances where the applicant did not have a copy in his possession and had neither seen nor obtained a copy of the magazine.

1. The relevant publication (Exhibit L) included a Foreword which stated: "Amongst these brave knights of tawhid and jihad was 15-year-old Farhad Khalil Mohammad Jabar who on 2 October 2015 struck the crusaders of Australia and killed one of their personnel."
2. It was not suggested the document was in the possession of the applicant.
3. The trial judge ruled Exhibit L was relevant and admissible on the following basis: "[7] It seems to me that the document is relevant to the issues in this trial in this way. What is said to have been, on the Crown case, a terrorist act carried out in the name of Islamic State on the streets of Parramatta on 2 October 2015 was claimed by Islamic State and embraced in that way in this document. It operates to complete a picture of the interest of Islamic State in adopting and embracing the act of Farhad Mohammad in killing Mr Cheng. The document is not tendered as a document produced by the Accused or possessed by the Accused, but it bears, in my view, upon the element of "terrorist act" which the Crown must prove." R v Dirani (No 3) [2018] NSWSC 882 at [7].
4. In a subsequent judgment, R v Dirani (No 4) [2018] NSWSC 888, a submission that the document should be excluded under either s 135 or s 137 of the Evidence Act was rejected. The submissions in support of this ground of appeal do not challenge that ruling.
5. The applicant submitted that the fact that the murder was a terrorist act was not in issue. It was submitted that Exhibit G (a note extolling Islamic State) found on Farhad Mohammad's body made it clear that he intended to commit a terrorist act. It was further submitted that even if it was in issue, Exhibit L could not be used to retrospectively cloak the event which occurred with a particular characterisation. In these circumstances it was submitted that it was not relevant. It was also submitted that it was arguably hearsay.
6. The Crown submitted that the trial judge was correct in finding where the terrorist act in question was said to have been carried out in the name of Islamic State, it was relevant that an Islamic State publication had embraced it and praised Farhad Mohammad for what he had done.

Consideration

1. The applicant was charged with conspiring to do acts in preparation of a "terrorist act" (as defined in s 100.1 of the Criminal Code).
2. In the present case, the relevant act was the obtaining of a gun to be given to Farhad Mohammad to enable him to kill an innocent civilian. It was necessary to show that act was a terrorist act. The embracing of the act by a publication of ISIS is evidence in support of that proposition. It was thus relevant within the meaning of s 55 of the Evidence Act as being capable of rationally effecting the probability of the act being a terrorist act.
3. The document was not tendered for a hearsay purpose. Its relevance lies in the fact that it was a statement made in a publication of ISIS, not the truth of its content.
4. As I indicated, no reliance was placed on s 135 or s 137 of the Evidence Act in the submissions filed in support of this ground. In the circumstances, it has not been made out.

Ground 5: His Honour erred in permitting the Crown to tender the applicant's version of the 1.53pm conversation tendered by the applicant in the first trial.

1. This ground relates to the transcript of a recorded conversation which took place between Mr Alou and the applicant at 1.53pm whilst they were sitting in their motor vehicles parked next to each other at Merrylands Oval. The recording device was in Mr Alou's vehicle.
2. At the first trial of the applicant, each of the applicant and the Crown tendered a transcript of the conversation which was said to have taken place. In each of the versions tendered, the following words were attributed to Mr Alou, "[b]ut it will affect, the brother, Parra, affect the masjid, mine, it will affect me, do you know anything?".
3. At the trial the subject of the present appeal, the Crown tendered a similar version, whereas the applicant tendered a different version, "[b]ut it will affect the brother, Kawa, affect the masjid, mine, it will affect me, do you know anything?". The Crown also tendered the version tendered by the applicant at the first trial. This was the tender the subject of the objection.
4. In dealing with the objection (R v Dirani (No 29) [2019] NSWSC 64), the trial judge noted that Kawa Alou was the brother of Raban Alou. His Honour also noted that in opening to the jury, Senior Counsel for the applicant after reading out the version propounded by the applicant said that the defence case is that the conversation might be "about a dispute between Mr Raban Alou and his brother Kawa who were in a major dispute at that time".
5. The trial judge noted that that picked up certain evidence concerning a dispute between Mr Alou and his brother relating to Mr Alou's marriage to Ms Sharna Perger.
6. The trial judge at [29] of his judgment stated that he proceeded on the basis that the content of the conversation was subject to "close consideration" by the parties at the first trial. His Honour rejected the submission that the Court should approach the issue on the basis that the applicant was in no better position than anyone else to detect what was said. The trial judge stated at [35] that the applicant was a party to the conversation and listening to the recording would operate to assist him to refresh his memory. His Honour said that the use of the word "Kawa" instead of "Parra" was relevant to an important issue in the trial, namely, what was said in the conversation and what it revealed concerning the accused in a manner which may or may not incriminate him.

The submissions

1. The applicant suggested that the object of the tender was to damage the applicant's credibility by making the applicant appear dishonest in changing his case. He submitted that there was no evidence the applicant had changed his instructions.
2. It was submitted that it was unfair to submit that because the applicant was a party to the conversation he should have known its contents. In that context, it was pointed out that the conversation occurred in October 2015, the first trial during June 2018, and the second during February 2019. It was submitted in those circumstances that it was unfair to assume the conversation was of such significance that the applicant would remember it.
3. It was also contended that the trial judge erred in carrying out the balancing exercise required by s 135 and s 137 of the Evidence Act. It was submitted that whilst the conversation was of importance, the balancing exercise required consideration of the version the applicant no longer relied upon. It was submitted that these conversations had no probative value at all, except to call the applicant's instructions into question.
4. It was also emphasised that the trial judge directed the jury that the evidence was the recording itself. It was submitted that for the Crown to seek to elevate the transcript into actual evidence in those circumstances was unfair.
5. The Crown submitted that it was open to the trial judge to infer that the version tendered at the first trial was adduced on the instructions of the applicant. It submitted that no evidence was led to the contrary. The Crown also submitted that there was no clear challenge to the proposition that the transcript was produced with the authority of the applicant.
6. So far as s 90 of the Evidence Act was concerned, the Crown pointed out that the focus of the test under s 90 is whether the use of the evidence at the trial would be unfair. It was submitted that it was not unfair simply because the evidence might put the accused in a position where he was compelled to provide an explanation to the jury.
7. The Crown submitted that the admissions were made voluntarily and there was no evidence that any pressure was applied or that the applicant was labouring under a misapprehension. It submitted in these circumstances that it was not unfair.

Consideration

1. It was open to the trial judge to conclude that the transcript of the recorded conversation could be tendered as an admission.
2. The relevant representation was that during the particular portion of the conversation, the word "Parra" (as distinct from "Kawa") was used. It did not appear to be contended that if the statement could be attributed to the applicant, it was not an admission against interest to satisfy the definition of admission in the Evidence Act.
3. Further, it seems to me that the legal advisers who tendered the transcript in the first trial had authority to make the statement by virtue of either s 187(1)(a) or s 187(1)(b) of the Evidence Act. As was pointed out in Commonwealth v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 377 ALR 191 at [18], s 87(1)(b) extended the range of agents whose representations may be treated as admissions against their principal to circumstances where the representation related to a matter within the scope of their authority (see also Edelman J at [54]-[55]). In the present case, the tender of the transcript of the conversation fell within that authority. It can also be readily inferred that the legal advisers did so on the client's instructions.
4. Nor do I think the evidence was unfair within the meaning of s 90 of the Evidence Act. The fact that the transcript was prepared some time after the conversation took place did not make the tender unfair. As the trial judge pointed out, the recording would have been available to the applicant to refresh his memory of what was said, particularly having regard to the events which evidently occurred on a significant day. Further, as was pointed out in EM v The Queen (2007) 232 CLR 67; [2007] HCA 46 at [107], the central question is whether the tender of the admission was unfair having regard to the circumstances in which they were made. There is nothing other than the length of time between the conversation and the preparation of the transcript to demonstrate circumstances which made the admission of the evidence unfair. As I have indicated, the length of time does not do so.
5. Nor do I agree that the tender was unfair because it was only directed to the credibility of the applicant. The applicant's case was that the conversation was directed to a dispute between Mr Alou and his brother, Kawa. The fact that a participant in the conversation had effectively produced a different recollection previously is directly relevant to what the conversation in fact involved. Of course, as the trial judge pointed out, it was ultimately a matter for the jury to form their view of what was said in the recording, but that does not mean they could not be assisted in that regard by a statement of a participant in the conversation as to what was in fact said.

The proviso

1. For the proviso in s 6 of the Criminal Appeal Act 1912 (NSW) to apply, it is necessary for the Crown to satisfy the Court that notwithstanding the erroneous admission of the evidence of CIN 1877, no substantial miscarriage of justice has actually occurred.
2. The principles surrounding the operation of the proviso were recently reviewed by this Court in Rogerson v R [2021] NSWCCA 160 at [389]-[412] and it is not necessary to repeat what is set out in that judgment.
3. In Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 17, the plurality emphasised that it is necessary to consider the nature and effect of the error in every case because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. They stated in that case (at [15]) that Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 "does not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction … regardless of the apparent strength of the prosecution case". The plurality emphasised (at [16]) that it was not possible to describe "the metes and bounds of those wrong decisions of law" which will occasion a substantial miscarriage of justice notwithstanding the cogency of proof of the accused's guilt. They emphasised that the fundamental question was whether there was a miscarriage of justice.
4. In Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28, the plurality pointed out (at [38]) that "some errors will establish a substantial miscarriage of justice even if the appellate court considers the conviction was inevitable."
5. In my opinion, a substantial miscarriage of justice occurred in the present case. A critical part of the Crown case was the events involving the applicant which occurred on 2 October 2015. As I indicated in dealing with ground 3, the evidence was tainted by the inadmissible commentary by CIN 1877 of the significance of the events on that day, coupled with speculation as to the reason for the applicant's conduct; see, for example, at [80] and [82] above. It is impossible to assess the extent that the jury took this evidence into account in reaching its conclusion.
6. In these circumstances, a substantial miscarriage of justice has occurred and the proviso should not be applied.

Conclusion

1. In the result, I would make the following orders: 1. To the extent necessary, grant the applicant leave to appeal against his conviction. 2. Appeal allowed. 3. Quash the conviction and order that there be a new trial.
2. PRICE J: I agree for the reasons enunciated by the Chief Justice that Ground 3 of the appeal has been established but Grounds 2, 4 and 5 have not been made out.

Ground 1: The verdict is unreasonable and cannot be supported by the evidence

The applicant's submissions

1. In submitting that the verdict is unreasonable, the applicant contended that there were key deficiencies in the Crown case. The essence of the applicant's submission was that the Crown had engaged in reverse engineering; starting from the conclusion that the applicant was involved in the conspiracy but had worked backwards to find evidence to support that proposition.
2. Whilst accepting that in a circumstantial case all of the circumstances should be considered holistically, the applicant emphasised that "the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence". [1]
3. The applicant provided a table detailing 19 inferences which the Crown asked in its closing address the jury to draw, which were submitted to be not open to the jury. These inferences were submitted to be highly speculative, sometimes made without evidence, or inherently implausible.
4. The applicant pointed out that the defence case at trial was that all of his behaviour could be readily explained.
5. The applicant emphasised that a critical aspect of the defence case was the absence of evidence, specifically of: 1. The applicant's presence when Mr Alou visited Mr Alameddine's house during the evening of 1 October 2015 or during the morning of 2 October 2015; 2. The applicant's attendance at what could have been planning meetings held at Parramatta Park by Mr Alou and others on 28 August, 4 September and 11 September 2015; 3. Evidence of the applicant attempting to help Mr Alou obtain a weapon from X2 or X3; 4. Any involvement with Farhad Mohammad leaving a Nike sports bag at the Parramatta Mosque on 15 September 2015 and Mr Alou taking the bag away on 18 September 2015; 5. Any involvement with Mr Alou's attempts to obtain an Islamic State (ISIS) flag from X4; 6. His absence from the meetings between Mr Alou, Mr Atai and Farhad Mohammad at the mosque between 21 September and 1 October 2015; and 7. Evidence demonstrating that the applicant knew Shadi Mohammad.
6. The applicant contended there was "a distinct lack of objective facts beyond the applicant's behaviour on 2 October which the Crown could legitimately ask the jury to draw inferences from". [2]
7. Another submission was that the Crown's closing argument moved away from the Crown's opening address in terms of its reliance on the applicant's presence with Mr Alou on 2 October 2015 between 1:26pm and 2:38pm as being the "crux" of the Crown case.

The payment of money and knowledge of the gun

1. It was the applicant's case that he gave Mr Alou money to buy food and not a weapon as had been contended by the Crown.
2. The applicant referred to Detective Sergeant Forsyth accepting in cross-examination that at 9:22am on 29 September 2015 Ms Perger sent a text message to Mr Alou stating "I put the 50 in ur wallet". [4]
3. Exhibit 1 "Alou History of needing/borrowing money (2/5/2015 to 3/10/2015)" is a schedule of messages and voice calls mainly between Mr Alou and the applicant which relate to talk about financial matters. The applicant in particular points to: 1. the applicant lending Mr Alou $200 on 2 May 2015 so Mr Alou can buy a car; 2. the applicant lending Mr Alou $100 for general expenses on 24 June 2015; and 3. the applicant offering Mr Alou money to help him out and Mr Alou asking for $50 on 18 July 2015.
4. The applicant submitted that the message quoted at [254] below "[p]ick up the millions" was consistent with the money being offered simply to help Mr Alou out. Exhibit 32 was tendered in his case which sets out the applicant's use of the term "millions": "We got millions" in exchanges with Mr Alou on 28 July 2015; [5] the term "Millionaire" [6] on 6 September 2015; and the term millions again on 4 October 2015: "Cause I got millions". [7]
5. The applicant further pointed to the conversation quoted at [270] below in which Mr Alou complains about having no food at his house and the applicant replies, "What did you do with the thing? You're supposed to get groceries this that" at a time when the applicant had already lent Mr Alou $50. The applicant's case was that his question was in effect, "What did you do with the $50 that I gave you?" The applicant submitted that such a question would be inconsistent with his lending money for the purchase of a weapon.
6. The applicant contended there was no evidence that the $660 cash found by police in his bedroom during the execution of the search warrant had anything to do with the purchase of a firearm.

The journey on 2 October 2015 and counter-surveillance

1. The applicant's case was that he attended the Parramatta Mosque on 2 October 2015 because his normal mosque at Macquarie University was closed and it was an informal arrangement. Senior Counsel for the applicant at trial pointed to the applicant's exchanges with Mr Alou and Mr Catovic on 25 September 2015, where he stated, "Uni closed down", "I'm trying to find a new spot" and "[p]robably regular going to start being [P]arramatta". [8] The applicant referred to the WhatsApp exchange on 1 October 2015 quoted at [309]-[310] below. The applicant contended that while they were outside the Parramatta Mosque, he and Mr Alou made an arrangement to have lunch together.
2. The applicant submitted that the recording of the brief conversation between he and Mr Alou quoted at [330] below was consistent with that arrangement being made, as were Mr Alou's conversations with Mohammad Salihy quoted at [363]-[364] below and Ms Perger quoted at [362] below.
3. A further submission was that the applicant's conduct was inconsistent with him acting as a lookout and consistent with him waiting for Mr Alou so that they could have a meal together. Furthermore, the defence case was that at each of the places where Mr Alou met Mr Alameddine, Mr Alou walked away from the applicant to allow him to have a private conversation with Mr Alameddine. It was submitted that the defence took the jury to each of the three different locations and explained the defence case in relation to each event.

The 1:53pm car to car conversation

1. The applicant referred to the competing versions of the 1:53pm car to car conversation. The applicant observed that the first part of the conversation was a lengthy discussion about "Macca's" which supported the applicant's case that their intention was to eat at Macca's.
2. The applicant referred to the different versions of the conversation which are quoted at [342] below. The applicant pointed out the principal difference in the versions is "Kawa" and not "Parra" and the conversation was about a dispute between Mr Alou and his brother Kawa concerning the marriage to Ms Perger. The reference to "heat" concerned Kawa who was agitated about Mr Alou's conduct.
3. In making this argument the application relied on Exhibit CF, which sets out a series of messages involving Mr Alou, Ms Perger, the applicant and others during the period 21 September to 30 September 2015. The applicant submitted that Ex CF demonstrated his role in attempting to mediate issues between Kawa and Mr Alou. Ex CF was said to demonstrate that as at late September 2015, Mr Alou was in dispute with his family over a car and his marriage to Ms Perger and this included Kawa threatening to bash both Mr Alou and Ms Perger.
4. The applicant submitted that significantly, the first time police heard the recording, they also heard the word "Kawa".

Extremist material/Bricks chat WhatsApp forum

1. The applicant submitted that the possession of extremist material was not illegal and did not make a person a terrorist. Further, the applicant's continued uploading of such material in the days before the shooting was inconsistent with his knowledge of a planned terrorist attack.
2. A further submission was that if the applicant had been involved in purchasing the gun, he would not have alerted police to the fact that he knew he was under surveillance and confronted them. The applicant contended that if he had been involved, he would have destroyed the extremist material on his computer, phone and discs in his car.

The Crown's submissions

1. The Crown placed emphasis on the whole of the evidence and submitted that the guilt of the applicant was the only reasonable and rational inference to be drawn when the evidence was considered in combination. The Crown pointed out that in addition to hearing from CIN 1877, the jury attended a view of all the relevant locations as to the movements on 2 October 2015 and was in a superior position to this Court to assess the question of whether the applicant was conducting counter-surveillance or playing a support role to Mr Alou on that day.
2. The Crown argued that each of the matters emphasised by the applicant in submissions did not advance his case. In written submissions, the Crown advanced the following arguments: 1. There was a large amount of evidence beyond the applicant's behaviour on 2 October 2015. The Crown contended that its case was not limited simply to possession of extremist material and knowledge of Mr Alou and Mr Atai. There was, the Crown submitted, significant material of the applicant's involvement prior to 2 October 2015. Further, the Crown argued that the jury would have been entitled to convict the applicant based on his involvement on 2 October 2015. 2. It was the applicant (not the Crown) that continually sought to elevate the significance of the counter-surveillance evidence on 2 October 2015. Express or implied applications for a Shepherd direction that the applicant's role as a lookout on 2 October 2015 be treated as or akin to an indispensable fact were refused by the trial judge. Furthermore, the trial judge made it plain that, at least in the circumstances where no argument was to be advanced that the Crown had changed a case put in opening, it was the Crown closing that needed to be addressed. 3. The Crown contended that it is simply incorrect to say that everything in the Crown case pivoted on the applicant's presence on 2 October 2015 being in furtherance of a terrorist plot. The Crown submitted the jury could have been satisfied independently of the events of 2 October 2015 that the applicant was providing encouragement, support and money to Mr Alou to further Mr Alou's terrorist activities. In any event, where the only alternative hypothesis put by Senior Counsel for the applicant was that the applicant's presence was for the purpose of having lunch with Mr Alou and "the steadfast refusal to accept the obvious inference available from the 1.53pm conversation that the [a]pplicant knew what [Mr] Alou was doing", the Crown argued that it was clearly open to the jury to accept the applicant's activities on 2 October 2015 were in furtherance of the conspiracy. [9] 4. The fact that Mr Alou may have made earlier attempts to obtain the weapon was of no moment when all the evidence is considered. 5. The Crown referred to the applicant's acceptance that he possessed a large amount of extremist material and it was open to the jury to find that he was "an extreme Salafist and supporter of violent jihad". The Crown case was partly circumstantial and the fact that the applicant was an extreme Salafist and supporter of violent jihad was relevant evidence that renders more probable that he would have reached the alleged agreement. 6. The applicant addressed the evidence of his activities following the terrorist act on 2 October 2015 by selectively extracting part of the events in question and submitting that an alternative explanation consistent with innocence was open, namely that the applicant had expressed a level of surprise consistent with him learning about the attack for the first time. The Crown submitted that the jury was more than entitled to reject that submission when those exchanges were seen in context and in light of all the evidence. 7. As to the applicant's table of inferences which were said to be speculative, the Crown submitted that each of the inferences were available when considered in light of all the evidence. The Crown contended that the applicant's argument depended on the fundamentally flawed proposition that all the jury were permitted to find was that the applicant had possession of extremist material and was present on 2 October 2015.

Legal Principle

1. The principles on which a Court will set aside a verdict as unreasonable were set out by the plurality (French CJ, Gummow and Kiefel JJ) in SKA v The Queen [10] as follows: "The task of the Court of Criminal Appeal [11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". [12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." [13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. 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." Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. [14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."" (footnotes omitted)

Consideration

1. The jury returned a verdict of guilty on the first count of the indictment which was in the following terms (omitting the particulars of the terrorist act (or acts)): "Between about 6 August 2015 and about 2 October 2015 at Sydney and elsewhere in the State of New South Wales did conspire with Raban ALOU, Milad ATAI and divers others to do acts in preparation for a terrorist act (or acts)…Contrary to sections 11.5(1) and 101.6(1) of the Criminal Code (Cth)".
2. In order to find the applicant guilty of the crime of conspiracy to do an act in preparation for a terrorist act or acts under the Criminal Code (Cth), the members of the jury were instructed by the trial judge that they must be satisfied beyond reasonable doubt of the following elements: [13] 1. the applicant intentionally entered into an agreement with one or more of the alleged co-conspirators to do acts in preparation for a terrorist act or acts; and 2. when the applicant entered into that agreement, he intended that acts in preparation for a terrorist act or acts would be carried out in furtherance of the agreement; and 3. at least one other party to the agreement intended that acts in preparation for a terrorist act or acts would be carried out in furtherance of the agreement; and 4. when he entered into the agreement, the applicant believed that at least one other party to the agreement (who in fact had the intention referred to at (c) above) intended that acts in preparation for a terrorist act or acts would be carried out in furtherance of the agreement; and 5. the applicant, or at least one party to the agreement, carried out an observable physical act in preparation for a terrorist act or acts in furtherance of the agreement; and 6. the applicant intended the acts in preparation to be in preparation for a terrorist act or acts, that is, an act having all of the essential characteristics of a terrorist act.
3. The trial judge's careful instructions to the jury included that for the element in paragraph (f), that is, the applicant intended the acts in preparation to be in preparation for a terrorist act, they must be satisfied beyond reasonable doubt that: [14] 1. the applicant intended that the acts in preparation would be for an action, or threat of action, involving the use of a firearm; and 2. the applicant intended that the acts in preparation would be for an action or threat of action to be carried out or threatened in Australia: 1. with the intention of advancing a political, religious or ideological cause, namely the pursuit of violent jihad; and 2. with the intention of coercing or influencing by intimidation the Government of the Commonwealth, or a State, Territory or foreign country, or part of a State, Territory or foreign country; or 3. with the intention of intimidating the public or a section of the public; and 1. the applicant intended that the acts in preparation would be for an action or threat of action of a kind which, if carried out, would, in the ordinary course of events have caused: 1. serious harm, that is physical harm, to a person; or 2. serious damage to property; or 3. a person's death; or 4. danger to a person's life, other than the person taking the action; or 5. the creation of a serious risk to the health or safety of the public, or a section of the public; but 1. the Crown must also prove beyond reasonable doubt that the action to be done or threatened was not advocacy, protest, dissent or industrial action.

2 May - 29 July 2015

1. The Crown pointed to various images that the applicant posted on the Bricks chat WhatsApp forum, which included the posts about the invitation to the AFP Eid dinner on 30 June 2015 and on 29 July 2015 with the text, "How many times has a small grouped overcame a larger one". [33] On 9 July 2015, the applicant posted the following message to the Bricks chat WhatsApp forum: "Salam alykhum brothers and sister , it's Abu bara [Milad Atai] fear Allah swt and don't be red hot, they will use anything just to put us behind bars , wallahi be smart my brothers , the prophet saw said a believer doesn't fall into a trap twice".
2. The exchanges between Mr Alou and the applicant in the above period included the following: 1. The applicant to Mr Alou (SMS sent on 2 May 2015 at 10:02:13pm): "I can get you 200 by early next week"; [34] 2. The applicant to Mr Alou (SMS sent on 24 June 2015 at 2:51:15pm): "I can give you 100 from what you gave me I don't need all of it"; [35] 3. The applicant to Mr Alou (WhatsApp message sent on 18 July 2015 at 10:55:41pm-10:56:04pm): "How much you need…50 bux ?"; [36] 4. The applicant to Mr Alou (WhatsApp message sent on 18 July 2015 at 10:56:18pm): "Call Jallal tell him bring you 50". [37]

14 August - 10 September 2015

1. The Crown referred to the steps taken by Mr Alou and Mr Atai to obtain an ISIS flag between 14 August 2015 and 1 September 2015 and to the applicant continuing to promote various content supportive of ISIS and violent jihad.
2. The Crown referred to the applicant: 1. Between 23 August and 31 August 2015 sharing a link to the pro-ISIS website Isdarat on three occasions and on seven occasions the ISIS propaganda "chulepne video". As to the chulepne video, Detective Senior Constable Eljarrar told the members of the jury the video contained footage of ISIS soldiers executing people by shooting them in the back of the head and cutting people's heads off; [38] 1. Posting on one chat of an ISIS one finger salute and on another WhatsApp chat on 23 August 2015 the applicant stated "never can the caliphate be defeated"; [39] 2. On 30 August 2015, the applicant posted a link on several WhatsApp groups (including the Bricks chat WhatsApp forum) to a video titled "the rise of the khilafah return of the gold dinar". [40] Detective Senior Constable Eljarrar said that this video contained extremist material and "dinar" meant currency; [41] 3. On 8 September 2015, the applicant posted to the Bricks chat WhatsApp forum an audio file of a lecture from Sheikh Ahmad Jibril. [42] Dr Shanahan gave evidence that Ahmad Musa Jibril was a Salafist who had a "grand narrative" about Islam being under threat. [43] Dr Shanahan described his views as "triumphalist" but he was not aware of Mr Jibril having affiliations with any terrorist organisation; [44] and 4. On 10 September 2015, the applicant shared a "Did you know" image setting out information about Anwar al-Awlaki's links to 9/11. [45]

15 September 2015

1. The evidence before the jury disclosed that at 7:37am on 15 September 2015, Farhad Mohammad arrived at the Parramatta Mosque carrying a black sports bag and a Nike backpack. He left the Mosque carrying his Nike backpack but left behind the black sports bag.
2. On the same day between 12:36pm and 10:10pm, Mr Alou called the applicant ten times. Between 12:39pm and 10:40pm, the applicant called Mr Atai seven times. There is no evidence of the content of those conversations.

16 September 2015

1. On 16 September 2015, the applicant called Mr Alou. There is no evidence of the content of this conversation.
2. The Bricks chat WhatsApp forum displayed a group icon image of an ISIS banner between 16 September 2015 and 21 September 2015.

18 September 2015

1. On 18 September 2015, Mr Alou picked up the black sports bag from the Parramatta Mosque.
2. At 12:25pm on 18 September 2015, the applicant recorded on his iPhone a video of himself saying: "Ladies and Gentlem[e]n, this is for all you pigs out there, you dirty mother dogs, you little hypocrites among us, you got nothing on us, we're coming for you, we're gonna dominate you, what you going to do". [46]

20 September 2015

1. On 20 September 2015, the applicant attempted to call Mr Atai once and Mr Alou called the applicant.

21 September 2015

1. Between 1:27pm and 1:37pm on 21 September 2015, Mr Alou, Mr Atai and Farhad Mohammad met at the Parramatta Mosque in an area not covered by CCTV cameras. The three exited using different exits. Mr Alou contacted X3, who he and Mr Atai met at 8:03pm. Mr Alou asked "Can you get anything?", turning his hands into the shape of a pistol. The irresistible inference is that Mr Alou was speaking about obtaining a firearm.

23 September 2015

1. Two days later, Mr Atai and Farhad Mohammad met at the Parramatta Mosque. The applicant called Mr Alou and Mr Atai. There is no evidence of the content of those calls.

24 September 2015

1. On 24 September 2015, at about 2:11pm, both Mr Alou and Mr Atai contacted X2 and arrangements were made to meet that night and that it was urgent. They met at a chicken shop in Granville. Mr Alou asked X2 for a favour and that he wanted a gun. X2 asked who he had "dramas" with. Mr Alou replied, "we don't have dramas with anyone. We can't tell no-one". X2 said he would ask around. [47] After finalising code words to be used, a follow up meeting was arranged.

25 September 2015

1. On 25 September 2015, at 8:15pm, Mr Alou called the applicant talking about car tint and doing something tomorrow. At 10:26pm, Mr Alou had a telephone conversation with his wife Zeinab (Sharna) Perger in which Mr Alou told her that he would go past Mr Atai's home to talk about something. When Ms Perger asked why he wanted to see Mr Atai, Mr Alou said: "Do you want me to tell you everything on the phone, you want me to tell you who I want to kill tomorrow?" He went on to say: "I…say stupid shit like that, oh, I wanna go kill this guy…you know, we're tapped. Like, fuck, I'm gunna say something dumb, like, just gunna go speak to the brother, and that's it, bro. See what the hell is going on…" [48]
2. Mr Alou then said to Ms Perger that he needed Mr Atai's advice on something and that "it is nothing to do with this".

26 September 2015

1. Between 12:59pm and 1:08pm on 26 September 2015, Mr Alou and the applicant arranged to meet at the Stockland Mall at Merrylands. At around 1:43pm, the applicant changed the Bricks chat WhatsApp forum icon to an image of armed militants with the caption "RISE UP To The Call Of Ummah". [49]
2. Dr Shanahan gave evidence that "ummah" is a general term for the international community of Muslims. He said it did not necessarily apply only to Muslims in the Islamic State but to Muslims all over the world.
3. At approximately 2:00pm, Mr Alou messaged X4 using WhatsApp and asked if his jumper was ready. X4 replied, "Wallah sorry brother I fully forgot about it…we're doing Eid festival at the moment I'll make it as soon as I can and let you know". [50]
4. At about 2:12pm, the applicant spoke on the phone to Mr Alou about where they should meet. The conversation included the applicant asking "Give me the street and I'll be there" and Mr Alou responding "I don't know because the guy…let me message him…I'm going to his house now…it only takes me ten minutes". [51] A further conversation followed at 2:30pm in which Mr Alou said "…he's a little bit busy so, you know". [52] They agreed to meet at the Stockland Mall and they met there about 25 minutes later.

27 September 2015

1. On 27 September 2015, the applicant posted on the Bricks chat WhatsApp forum a quote from Sheikh Ahmad Musa Jibril and "Isdarat is back". [53] Dr Shanahan gave evidence that Isdarat TV had ISIS videos uploaded on it.
2. Hozan Alou replied to the applicant's post that he did not like "[t]hat stuff head chopping". [54] An exchange followed between the applicant and Hozan Alou during which the applicant told Hozan Alou it was "not a head chopping website" and that head chopping was "part of Islam". [55] Hozan Alou enquired at 12:31pm, "where does it say in the hadith". [56]
3. At 12:38pm, Mr Alou telephoned Ahmed Bakhtiari and asked to borrow $200. During that conversation, Mr Bakhtiari told Mr Alou that he could lend him a maximum of $100. At 12:50pm, Mr Bakhtiari agreed to meet Mr Alou. At 12:54pm, Mr Alou was observed with a male fitting Mr Bakhtiari's description in the vicinity of Mr Bakhtiari's home.
4. At 12:43pm, the applicant had uploaded on the Bricks chat WhatsApp forum an audio file stating: "It's actually part of Islam and actually Allah Subhanahu Wa Ta'ala says strike their necks in war and Mohammad Sallallahu Alihe Wa Sallam he's beheaded people before, he's beheaded 400 or 600 Jews in one battle." [57]
5. About a minute later, another audio file was uploaded by the applicant which commenced: "All the scholars no one denies beheading in Islam, it's an establish punishment…" [58]
6. At 2:14pm, Mr Alou posted on the Bricks chat WhatsApp forum "can any1 gimi 100 bucks nd ill pay em back". [59] The applicant replied "I got 50" to which Mr Alou posted "ill take it buddy". [60] They discussed meeting.
7. There were further postings on the Bricks chat WhatsApp forum between Mr Alou, the applicant and Mr Atai including the link posted by Mr Atai, "Khutbah Khalifah Abu Bakar Al Baghdadi di Mosul Jum'at". This was a speech about Syria being under the control of ISIS.
8. Mr Alou shortly after made the following post: "Bro straight out this isn't smart at all speaking bout this stuff we should be more wise instead of fools coz clearly these filthy munafiqs dogs see this stuff. We should be smarter nd just coz we have heat doesn't mean dats we give ourselves even more to these pigs and allahu alam". [61]
9. A footnote in the exhibit explained that "munafiqs" ("hypocrites") were a group described in the Koran as outward Muslims who were secretly unsympathetic to the cause of Muslims and actively sought to undermine the Muslim community. "Allahu alam" means "Allah knows best".

28 September 2015

1. On 28 September 2015 at 8:53am, Mr Alou telephoned Mr Elkholy and asked for a loan of $100. Mr Elkholy asked Mr Alou if he had a Commonwealth Bank account but then advised against conducting the transaction electronically. Mr Elkholy said that "dodgy records will show up". [63] Mr Alou stated he only had a Commonwealth account. Mr Elkholy replied that he would send it as "cardless cash". Mr Alou said he was in Chester Hill and would go to an ATM where he would wait for Mr Elkholy to call with a code. At 9:09am Mr Elkholy telephoned Mr Alou, giving him a code and PIN number. A minute later, a withdrawal was made from a Chester Hill ATM machine from Mr Elkholy's account using the cardless cash option.
2. On the same day, between 10:15am and 10:27am the applicant posted on the Bricks chat WhatsApp forum a number of images: an image of a cat, machine gun and ISIS flag; an image of an ISIS fighter with the caption "REAL MEN ARE KNOWN IN TIMES OF HARDSHIP" [64] and an image "BOTH MUHAMMAD BIN QASIM THE CONQURER OF SINDH [and] TARIQ BIN ZIYAD THE CONQURER OF SPAIN WERE 17 YEARS OF AGE WHEN THEY CONQUERED THE RESPECTIVE COUNTRIES". [65]
3. Between 10:29am and 11:41am, the applicant and Mr Alou engaged in a WhatsApp chat exchange during which the applicant stated, "You didn't come past…Pick up the millions". [66] They subsequently met at Marsfield at 12:23pm.
4. At 2:59pm, the post which has been quoted at [215] above was sent by the applicant to Mr Alou.
5. Between 9:52pm and 10:01pm, the applicant changed the Bricks chat WhatsApp forum icon to an image depicting masked militants holding weapons standing in front of a large ISIS flag.
6. On 28 September 2015, there were exchanges between Mr Alou and members of his family concerning Ms Perger and a dispute over a motor vehicle, which are contained in Ex CF. Exchanges between Kawa Alou and Mr Alou included: Kawa Alou: "I'm going to fuckin' - I'm going to grab that car, I'm going to fuckin' smash you, you cunt. I'm going to smash you---" … Mr Alou: "What do you want now? What do you want now?" Kawa Alou: "And bro, I swear to you, when I see your wife, your so-called wife, I'm going to kick her to the…(indistinct)… You think I won't?" Mr Alou: "Okay" Kawa Alou: "You stupid idiot. You dumb dog. You want to - you want to not listen to me, your older brother and John, and - and Bovour? You little dog. That's what you are". [67]

29 September 2015

1. At 10:38am on 29 September 2015, Ms Perger telephoned Mr Alou during which she said: "Oi. Milad's talking to Masood now, near Masood's or something and Rafat's or something and then he's gotta go drop something for the brothers and then he's coming." [68]
2. At about 10:41am, Mr Atai used Mr Alou's car to drive to Mr Alameddine's house at 11 Lockwood Street, Merrylands where he spoke to a number of unidentified males out the front of the house.
3. At 10:58am, Ms Perger telephoned Mr Alou and told him they were at the Mosque and that: "…Milad said to call your brother and tell him to come - send me your brother's number so that he can call your brother to tell him to come outside when he gets there 'cause he has to give him money or something". [69]
4. During this telephone conversation, Mr Atai's wife could be heard in the background saying, "don't say it over the phone".
5. At about 11:00am, Mr Alou telephoned his brother Hozan Alou and told him that Mr Atai would come past to give him the money Mr Alou owed him.
6. At 12:07pm, Mr Atai entered the Parramatta Mosque and was followed by Farhad Mohammad. They remained out of camera view.
7. At about 12:45pm, Shadi Mohammad, Farhad's sister entered and then exited the STA Travel Centre in the Westfield Shopping Centre at Parramatta whilst Farhad waited for her. [70] They subsequently left the Westfield Shopping Centre together.
8. It is the Crown's case that the clear inference is that this was the occasion Shadi Mohammad booked her flight to leave Australia on 1 October 2015.
9. There were a series of voice calls between Mr Alou and members of his family on 29 September 2015 in Ex CF. Those exchanges included at 5:54:46pm and following: Mr Alou's mother: "Then why are not you coming home, we need the car, Jankurd needs it, what is going on with you?" Mr Alou: "Mum, you told me don't come home. Kawa wants my car. I'm not giving no one my car. It's my car" … Mr Alou's mother: "Forget this rubbish girl. This is street girl" Mr Alou: "Okay, mum. No one's going to divorce, mum. No one". [71] … Kawa Alou: "Anyhow, I'll tell you something. This is how I'm going to run it down for you, whether you come home or not, I'm going to find you. I'm going to smash the shit out of you. I'm going break that car and I swear to you I'm going to smash that girl you're with. Do you understand me?" [72]

Submissions at trial as to the meeting on 29 September 2015

1. It is convenient to refer to the arguments put to the jury as to whether the applicant met Mr Atai. Mr Simmonds' evidence included that the phone data suggested that the applicant was on his way home at 10:35pm, which was the time that Federal Agent Smith testified that Mr Atai and the unknown person were walking on Bursill Street, Guildford.
2. When referring to Mr Simmonds' evidence, the Crown reminded the jury that the "pings" give a general indication of the phone; that it couldn't be said with "any accuracy, positively or negatively, where [the applicant] was specifically at any given time". [87]
3. The Crown said what the jury could work out was that the applicant's phone was generally in the same area where he was asked by Mr Alou to meet, when Mr Atai was seen to be leaving, at about the same time Mr Alou and Mr Atai were there. The Crown told the jury that they could "work out from all of that that the three of them met at that location at the same time". [88]
4. The Crown referred to Mr Alou's statement at 9.20.09pm that "I believe im just paranoid akhi this stuff is doing my head in" [89] and put to the jury that the applicant's Senior Counsel had brushed aside Mr Alou's statement about his car in the phone call just before 6:00pm on 29 September 2015 with his mother and Kawa Alou (see Ex CF p 129-155). The Crown submitted that Mr Alou's paranoia was consistent with the fact that he was attempting - but had to that date failed - to obtain a firearm and an ISIS flag in circumstances where Shadi Mohammad's flight departing Australia was approaching in coming days.
5. Senior Counsel for the applicant drew the jury's attention to the content of the conversation in the exchanges between the applicant and Mr Alou between 9:09pm and 9:40pm and to the call made by Kawa Alou to Mr Alou at [268] above. Senior Counsel for the applicant contended that Mr Alou had been harassed by his brothers and his mother. He referred the jury to the calls between Mr Alou, his mother, his father and his brother between pages 131 to 155 of Ex CF. He put to the jury that Mr Alou was in the midst of a terrible family dispute and the applicant had been acting as a mediator for him. It was submitted that he had been in contact with Jalal Suleman and found out what the problem with his sister was.

30 September 2015

1. At 1:57pm on 30 September 2015, Mr Alou and Farhad Mohammad arrived at the Parramatta Mosque. Between 1:57pm and 2:27pm, they were in the Mosque area not covered by CCTV cameras. They departed separately shortly thereafter.
2. Between 2:22pm and 2:40pm, the applicant posted several images on the Bricks chat WhatsApp forum, including an image which stated "THE BIGGEST ENEMY OF ISLAM ARE NOT THE ISRAELIS, AMERICANS OR THE SHIAS THEY ARE THE MODERATE MUSLIMS". [90]
3. At 2:46pm, Mr Alou sent an SMS to X2 which stated: "…X2 its Raban cuz this is the guy that needs workers give him a call or message him nd he will meet up with ya tonight 0414358692". [91]
4. By this message, Mr Alou provided X2 with an alternative phone number.
5. At 8:00pm, Mr Alou met with X1 and X2 at a chicken shop in Granville. X2 told Mr Alou that he could not source a firearm for him.
6. At 9:22pm, Mr Alou received an SMS from X2 texting the telephone number for Zakaria, an associate of Mr Alameddine. A few minutes later, Mr Alou telephoned the number provided and spoke to Zakaria's brother, telling him he was desperate and really needed Samim's number.

1 October 2015

1. At 12:02pm on 1 October 2015, Farhad Mohammad arrived at the Parramatta Mosque carrying a black Nike backpack. Mr Atai arrived about 20 minutes later.
2. At 12:42pm, Mr Alou sent an SMS to Mr Atai stating, "…can u ask ur boss wen im getting my $$$". [92]
3. At 1:00pm, Mr Alou arrived at the Parramatta Mosque carrying a black sports bag and being followed by Ms Perger. He entered the female entry of the Mosque and left the black sports bag in a location not covered by the CCTV cameras. About 15 minutes later, Mr Alou, Mr Atai and Farhad Mohammad stood together in a large group for prayer. At 1:36pm, Mr Alou hugged Farhad Mohammad, then left the Mosque without the black sports bag he had with him when he entered the Mosque. Almost an hour later, Farhad Mohammad collected the black sports bag left by Mr Alou and left the Mosque carrying the bag. He returned to the Mosque at 2:57pm without the sports bag.
4. At 2:38pm, Mr Alou contacted Mr Atai. During that conversation Mr Atai said to Mr Alou he was "at the house" and Mr Alou replied that he was coming. Mr Atai then told Mr Alou, "Raban can you bring me something, bro? Actually, I'll give you the money, cuz". [93]
5. At about 2:51pm, Farhad Mohammad met his sister Shadi at Parramatta. Shortly thereafter, Shadi got into a taxi and was driven to Sydney International Airport. Farhad Mohammad returned to the Parramatta Mosque.
6. At 7:44pm, Mr Alou called Ubidallah Azari and confirmed a meeting time of 7:45pm. Mr Alou then drove to Mr Atai's home in Guildford and picked up Mr Atai. Both men travelled to the Bukhari House Musallah in Auburn.
7. Between 7:44pm and 7:47pm, the applicant made three unsuccessful attempts to make telephone contact with Mr Atai.
8. At 9:31pm, Mr Alou and Mr Atai attended the vicinity of Mr Alameddine's home in Lockwood Street, Merrylands. He made five attempts to telephone Mr Alameddine using Ms Perger's mobile phone between 9:00pm and 10:30pm.
9. At 10:38pm, Mr Alou telephoned Mr Alameddine and told him that he had attended his house earlier that evening and had seen his brother. Mr Alameddine confirmed that he was not home and would call Mr Alou the following day. Mr Alou insisted that Mr Alameddine see him that night.
10. At 10:57pm, Mr Alou and the applicant exchanged messages on WhatsApp. The sequence of those messages is slightly different in the Crown's Exhibit AH, which was extracted from the applicant's mobile phone, and Exhibit 6A, which was tendered in the defence case and was extracted from Mr Alou's phone. Ex AH includes the following: Mr Alou: "12:30 nd second session 1:30 cuzzyyyy" The applicant: "What time parra toms" Mr Alou: "Most likely 1st one cuzzyyyy" The applicant: "Which one you going to This n that Gucci hat Sweet". [94]

2 October 2015 until 12.21pm

1. Between 6:51am and 8:04am, Mr Alou unsuccessfully tried to contact X3.
2. At 9:21am, Mr Alou and Ms Perger had a conversation in Ms Perger's car in which the following was said: Mr Alou: "Listen" Ms Perger: "What" Mr Alou: "(indistinct). Look at me" Ms Perger: "I'm listening - (silence) - What" Mr Alou: "(indistinct) it's dangerous stuff. Forget about it" Ms Perger: "I feel like Raban I don't know what the hell you're up to but" … Ms Perger: "If you do something stupid "inshallah" you get caught" … Mr Alou: "(indistinct) What's stupid hows that stupid? - Alright lets do it - I'm only doing this because - whatever I do Subhanallah (Allah) he'll accept it" Ms Perger: "alright (indistinct)" Mr Alou: "It's gotta be done but…" [97]
3. Between 9:38am and 10:17am, two unanswered calls were made between Mr Alou and Mr Alameddine. X3 messaged Mr Alou at 10.15am.
4. At 9:58am Farhad Mohammad entered Parramatta Mosque carrying the Nike backpack on his back.
5. At 10:17am, Mr Alameddine sent a text message to Mr Alou stating "Salam alakum (peace be unto you) bro what's happening come around". [98]
6. At 10:18am, Mr Alou sent a message to Mr Alameddine stating "Wa alaykum salam (and unto you be peace) akhi (brother) im in Guildford ill msg wen im outside just wanna come give salams (greetings) to ya". [99]
7. At 10:29am, Mr Alou sent a text message to Mr Alameddine stating "Asalamu alaykum in outside". Mr Alameddine texted back "Wa alukum salam (and unto you peace) Yallah (I'm waiting/Let's go) cuz". [100]
8. At 10:31am, Mr Alou parked his car in front of 13 Lockwood Street, Merrylands. He exited his vehicle and walked to the vicinity of 9 Lockwood Street, where he moved out of sight. At 10:41am, he returned to his vehicle and drove home.
9. At 10:56am, Ms Perger called Mr Alou and their conversation included: Mr Alou: "I got shit to do bro" Ms Perger: "Like what?" Mr Alou: "Business before pleasure. No I'm joking" Ms Perger: "Um ---" Mr Alou: "I'm so hungry right now…(indistinct)…" Ms Perger: "I'm gunna - what?" Mr Alou: "So hungry, man" Ms Perger: "From why?" Mr Alou: "What?" Ms Perger: "Um, trying to think what you can do?" Mr Alou: "No, no, no. Who's there I can call to go get some money?" Ms Perger: "Ask [the applicant]" Mr Alou: "No. It's…(indistinct)…like five bucks for buy organo pizza" Ms Perger: "Oh well…(indistinct)…" Female 2: "…(indistinct)…seen my phone?" Ms Perger: "What?" Female 2: "I dunno where it is" Ms Perger: "Calm down, cuz. Why is your phone silent, bro?" Mr Alou: "…(indistinct)…what? Oi" Ms Perger: "What?" Mr Alou: "Alright" Ms Perger: "Well, what are you gunna do 'cause you - call me on my mum's phone from - I'm calling my mum from my dad's phone. (Voice in background). Why? Yeah, I'm…(indistinct)…what's it called?" Mr Alou: "Hello" Ms Perger: "Um, how are you gunna speak to him because he wants you to go, um, Jummah (Friday prayers) at…" Mr Alou: "Yeah, well, I'm not gunna go after (Jummah) Friday prayers that's why I have to speak to him because I can't after (Jummah) Friday prayers I've got something to do". [101]

The road journey

1. I do not propose to detail all of the movements of the applicant and Mr Alou in the early afternoon of 2 October 2015. Included in Ex AJ was video footage taken from air and ground level of Mr Alou's vehicle and the applicant's vehicle as they travelled to different locations and the movements of Mr Alou, Mr Alameddine and the applicant.
2. In the footage, the silver Corolla driven by the applicant is seen to leave the Parramatta Mosque first, followed by the white Camry driven by Mr Alou which travels in the same direction as the applicant's vehicle.

The stop in Jones Park, Parramatta

1. The route taken by the two vehicles to Jones Park is shown in map (Exhibit Z). At Jones Park at approximately 1:37pm, the applicant parked his car by reversing back into position, whilst Mr Alou drove past the applicant's vehicle, turned around, drove past the applicant's car again and parked front first on the other side of the car park.
2. The applicant remained in his vehicle whilst Mr Alou got out of his vehicle and met with Mr Alameddine, who had walked to the meeting. After they spoke to each other, the two men walked to Mr Alou's vehicle and got in. During all of this time, the applicant was seated in his vehicle which was parked on the other side of the carpark facing Mr Alou's vehicle.
3. As they drove away from Jones Park, a conversation between Mr Alou and Mr Alameddine was partially recorded at about 1:39pm by a surveillance device in the vehicle: Mr Alou: "What did you brang? (indistinct)" Mr Alameddine: "Well I brang the 30 cal bro. You (indistinct) wanted to get the big one?" Mr Alou: "Nah nah nah (indistinct) Parramatta (indistinct) shit bro wallah" Mr Alameddine: "this is bad man" Mr Alou: "I can't help it cuz cuz. I gotta go to Merrylands (indistinct)" Mr Alou: "Yeah yeah" Mr Alameddine: "Absolutely". [106]
4. It was clearly open to the jury to conclude that Mr Alameddine had brought the wrong calibre firearm to the meeting and Mr Alou was displeased and did not accept it.

The stop in Warwick Road, Merrylands

1. With Mr Alameddine in his vehicle, Mr Alou drove to Warwick Road, Merrylands, where he parked. The applicant followed in his vehicle and parked in Warwick Road. Mr Alameddine and Mr Alou got out of the vehicle at about 1:42pm and whilst standing on the footpath, had a conversation for some seven minutes. The applicant remained in the driver's side front seat of his vehicle during this time.
2. Warwick Road, Merrylands is parallel to Lockwood Street, Merrylands where Mr Alameddine lived.
3. After Mr Alou and Mr Alameddine finished their conversation, Mr Alou walked to the front driver's side door and Mr Alameddine walked away from that vehicle with some bags in his hands. Mr Alou closed the front driver's side door and walked to the applicant's vehicle, where he leant right next to the front driver's side window. Mr Alameddine, who was walking away, can be seen looking back over his shoulder towards where Mr Alou was standing.

The stop in Merrylands Park, Burnett Street, Merrylands

1. At about 1:50pm, Mr Alou and the applicant drove to Merrylands Park where they parked in the carpark. Mr Alou parked first. The applicant reversed into a space, then drove out and drove bonnet first into a second space on the other side of Mr Alou's vehicle. Both vehicles were parked parallel to each other. They remained seated in their vehicles.

The 1:53pm car to car conversation

1. At about 1:53pm, whilst parked next to each other, the applicant and Mr Alou had a conversation which was recorded.
2. The audio tape (Exhibit Q) of the conversation was played to the jury. The transcript of the Crown's version of the conversation is contained in Exhibit P. The Crown also tendered two defence versions of the conversation admitted in the applicant's first trial. These versions of the conversation became Exhibits AK and AL. However, the applicant tendered in his case Exhibit 12 which his Senior Counsel put to the jury was the correct version. The four versions of the conversation are set out below: 1. Exhibit P: Mr Alou: "Shu" The applicant: "(indistinct)" Mr Alou: "Yeah yeah (indistinct) I'm actually hungry bro.. starving" The applicant: "(indistinct)" Mr Alou: "(indistinct) thingo apparently, he said maccas is ahh - I was checking out the - oh my god…seen the picture I was like Milad (indistinct) didn't he, he said maccas ah" The applicant: "every.. every Maccas is a franchise" Mr Alou: "Huh. What's that? What's franchise mean. I forgot" The applicant: "Privately owned under the name" Mr Alou: "Yeah I know I know" The applicant: "If they own the business" Mr Alou: "Yeah I know, Granville is owned by some person" The applicant: "Every maccas (indistinct). You can go buy a maccas for X amount of dollars (indistinct)" Mr Alou: "Yeah" The applicant: "All the money goes to you" Mr Alou: "Yeah I know" The applicant: "That's the (indistinct)" Mr Alou: "I know. Yeah that's right. Umm Granville is like that - all of them. All of the like that huh" The applicant: "Yeah" Mr Alou: "Hectic.…eats wallah.. yeah" The applicant: "(indistinct)" Mr Alou: "What" Mr Alou: "Um…" Pause approximately 7 ½ seconds Mr Alou: "Um I need some help. You know I told you when he's going to thing, did I tell you where? I told you, I said it (Indistinct) car" The applicant: "Yeah" Mr Alou: "But it will affect, the brother, Parra, affect the masjid, mine, it will affect me, do you know anything? (Pause approx. 5 seconds) because Allah azza wa jal. (Allah mighty and majestic) I asked the brother I tell him you know because.. ah.. I gotta share the practical issue where you know, (indistinct), I'm like leave it to me inshallah (God willing) because, so it doesn't come back, you know what I mean, cause the brother's got heat and everything, he's got a lot of heat" The applicant: "(indistinct).. Can't get involved but" Mr Alou: "I know, he said, um but, I don't know…that's why I'm like leave it to me. I'll do something, I'll figure it out, inshallah (God willing). (Indistinct)… Pause approximately 2 seconds The thing is it's hard" The applicant: "(Indistinct)". [107] 1. Exhibit AK: Mr Alou: "(indistinct) Shu" The applicant: "(indistinct) You hungry?" Mr Alou: "Yeah yeah (indistinct) What, you hungry bro? I'm actually hungry" The applicant: "(indistinct)" Mr Alou: "(indistinct) What happened to you? thingo a Apparently he said Maccas is ahh - I was checking out the - oh my god - I've seen the picture I was like that Milad did it (indistinct) didn't he, he said Maccas ah" The applicant: "Every Maccas is a franchise" Mr Alou: "Huh. What's that? What's franchise mean. I forgot" The applicant: "It's privately owned under the name of Maccas" Mr Alou: "Yeah I know, I know" The applicant: "If they you own the business" Mr Alou: "Yeah, I know, Granville is owned by some person" The applicant: "Every Maccas (indistinct) Every (indistinct). You can go and buy a Maccas for X thousand dollars" Mr Alou: "Yeah" The applicant: "All the money goes to you" Mr Alou: "Yeah I know" The applicant: "That's the (indistinct)" Mr Alou: "I know. Yeah that's right. Umm Granville is like that - all of them. All of the like that huh" The applicant: "(indistinct) Yeah" Mr Alou: "hectic Eats wallah…yeah (indistinct)" The applicant: "(indistinct)" Mr Alou: "What. Umm" Mr Alou: "I need some help. You know I told you when he's going to thing, did I tell you where? (Indistinct) I told you, no? But it will affect, the brother, Parra, affect the masjid, mine, it will affect me, do you know anything because Allah (indistinct). I asked the brother to tell him, you know, because gotta share the possibility where he knows that I'm…No, I told him because I gotta (indistinct) leave it to me inshallah (God willing), because, so it doesn't come back, you know what I mean, cause the brother's got heat and everything he's got a lot of heat" The applicant: "I can't get involved but" Mr Alou: "I know, he said, oombah Allah, I don't know, that's why I'm, like leave it to me. I'll do something, I'll figure it out, Inshallah. The thing is, it's hard" The applicant: "(indistinct)" Mr Alou: "Oh, fuck". [108] 1. Exhibit AL: Mr Alou: "(indistinct)" The applicant: "(indistinct) You hungry?" Mr Alou: "Yeah yeah. What, you hungry bro? I'm hungry" The applicant: "(indistinct)" Mr Alou: "(indistinct) What happened to you? Apparently he said maccas is ahh - I was checking out the - oh my god - I've seen the picture that Milad did it. He said maccas ah" The applicant: "Every Maccas is a franchise" Mr Alou: "Huh. What's that? What's franchise mean. I forgot?" The applicant: "It's privately owned under the name of Maccas" Mr Alou: "Yeah I know, I know" The applicant: "If you own the business" Mr Alou: "Yeah, I know, Granville is owned by some person" The applicant: "Every Maccas. You can go and buy a Maccas for X thousand dollars" Mr Alou: "Yeah" The applicant: "All the money goes to you" Mr Alou: "Yeah I know" The applicant: "That's the (indistinct)" Mr Alou: "I know. Yeah that's right. Umm Granville is like that - all of them. All of the like that huh" The applicant: "Yeah" Mr Alou: "(indistinct)" The applicant: "(indistinct)" Mr Alou "What. Umm" (8 second pause) Mr Alou: "I need some help. You know I told you when he's going to thing, did I tell you where? I told you, no? But it will affect, the brother, Parra, affect the masjid, mine, it will affect me, do you know anything (indistinct). I asked the brother to tell him, you know, because gotta share the possibility where he knows that I'm. No, leave it to me inshallah (God willing), because, so it doesn't come back, you know what I mean. Cause the brother's got heat and everything. He's got a lot of heat" The applicant: "I can't get involved bro" Mr Alou: "I know, he said oombah, I don't know, that's why I'm like, leave it to me. I'll do something, I'll figure it out, inshallah. The thing is, it's hard" The applicant: "(indistinct)" Mr Alou: "Oh, fuck". [109] 1. Exhibit 12: Mr Alou: "(indistinct)" The applicant: "(indistinct) You hungry?" Mr Alou: "Yeah yeah. What, you hungry bro? I'm hungry" The applicant: "(indistinct)" Mr Alou: "(indistinct) What happened to you? Apparently he said Maccas is ahh - I was checking out the - oh my god - I've seen the picture that Milad did it. He said Maccas ah" The applicant: "Every Maccas is a franchise" Mr Alou: "Huh. What's that? What's franchise mean. I forgot?" The applicant: "It's privately owned under the name of Maccas" Mr Alou: "Yeah I know, I know" The applicant: "If you own the business" Mr Alou: "Yeah, I know, Granville is owned by some person" The applicant: "Every Maccas. You can go buy a Maccas for X thousand dollars" Mr Alou: "Yeah" The applicant: "All the money goes to you" Mr Alou: "Yeah I know" The applicant: "That's the (indistinct)" Mr Alou: "I know. Yeah that's right. Umm Granville is like that - all of them. All of the like that huh" The applicant: "Yeah" Mr Alou: "(indistinct)" The applicant: "I've made the decision" Mr Alou: "What. Umm" (8 second pause) Mr Alou: "I need some help. You know I told you when he's going to thing, did I tell you where? I told you, I said (indistinct), you know? Nah?" Mr Alou: "But it will affect, the brother, Kawa, affect the masjid, mine, it will affect me, do you know anything? Cause I wanted to ask the brother, tell him, you know, because you got to share the customer, assume where he knows the (indistinct) Then, oh leave it to me inshallah (God willing), because, so it doesn't come back, you know what I mean. Cause the brother's got heat and everything. He's got a lot of heat" The applicant: "I can't get involved bro" Mr Alou: "I know, he said Umbah Allah. Ah, that's why I'm like, alright leave it to me. I'll do something, I'll figure it out, inshallah. The thing is, it's hard" The applicant: "(indistinct)" Mr Alou: "Oh, fuck". [110]

Submissions at trial as to the 1:53pm car to car conversation

1. In his closing address, the Crown put to the jury that the 1:53pm conversation indicated that the applicant "was aware of the when, where, how and why in relation to this terrorist event". [111] The Crown submitted that the correct version was Ex P, in which there was no reference to "Kawa".
2. The Crown placed emphasis on the words "You know I told you when he's going to thing" being in the past tense. The Crown submitted that Mr Alou was acknowledging that he had already told the applicant the details and the jury could work out from the applicant's conduct that he knew about the terrorist event and was a party to the agreement.
3. It was the Crown case that if it was suggested the applicant was saying in the conversation "I can't get involved", the jury could see that from 1:53pm onwards he continued to be involved and assisted Mr Alou for a considerable period of time. He did not get in his car and drive away saying "I want nothing to do with this."
4. The Crown submitted that "can't get involved but" may be a reference to Mr Alameddine because there had already been a discussion about Mr Alameddine and the heat that he had on him.
5. The applicant's Senior Counsel accepted that the Crown's version of the conversation was very damaging to the defence but put to the jury that the correct version was Ex 12. Senior Counsel pointed out that the first part of the conversation was about Macca's and the second part starts with the applicant saying, "I've made the decision".
6. Senior Counsel submitted that it didn't make sense if the applicant had been involved in the conspiracy for him to say, "Listen, Mr Alou, I've made a decision, I can't get involved, bro". He submitted that when the jury listened to the recorded conversation it sounded like "Ah can't get involved, bro".
7. Senior Counsel said that "[i]t sounds like the letter "A", but in fact what [the applicant's] saying is "I can't get involved, bro"". [112]
8. As to the Crown's submission that it was a reference to Mr Alameddine, the applicant's Senior Counsel asked rhetorically why would Mr Alameddine not want to get involved as he was on his way to Merrylands Park to provide the gun.
9. It was the defence case that the conversation concerned Mr Alou's dispute with his brother Kawa. The applicant's Senior Counsel submitted to the jury this conversation was a continuation of the conversations that Mr Alou and the applicant had in the week prior to the shooting about Mr Alou's family issues. Senior Counsel argued that the applicant was saying he could not get involved in the dispute between Mr Alou and his family.

The stop in Merrylands Park continues

1. After the car to car conversation, both men left their vehicles at about 1:56pm. They sat on the wall in Merrylands Park until about 2:04pm. They then returned to their motor vehicles and both men stood together at the rear of the applicant's vehicle.
2. About four minutes later, Mr Alameddine entered the car park on a bicycle. He proceeded behind the rear of Mr Alou's vehicle, turned left and went directly between the applicant's vehicle and Mr Alou's vehicle. He placed his bicycle between the front driver's side of Mr Alou's vehicle and the front passenger side of the applicant's vehicle. During this time, the applicant and Mr Alou remained at the back of the applicant's car.
3. Mr Alou then approached Mr Alameddine and had a conversation with him. The applicant remained on the other side of his car but can be seen facing the direction of Mr Alou and Mr Alameddine.
4. The listening device transcript at 2:04pm included in Ex P, which describes some indistinct talking and rustling noises and notes Mr Alameddine's movement of his bicycle, was brought by the Crown to the attention of the jury. The video footage at the time the rustling noises were heard shows Mr Alameddine leaning into the driver's side window of Mr Alou's car. Whilst that is occurring, the applicant moved from the other side of his car to the rear of that vehicle, which was closer to Mr Alou and Mr Alameddine. Mr Alameddine then parked his bicycle, which appears to be leaning against the applicant's car. He and Mr Alou walked away from the two cars into the carpark. The applicant moved around the back of his vehicle and got into the driver's side, where he remained. When two other vehicles entered the carpark, Mr Alou and Mr Alameddine moved to behind the applicant's vehicle.
5. At about 2:09pm, Mr Alameddine left the carpark on his bicycle.
6. It was the Crown case that the handover of the .38 Smith and Wesson revolver from Mr Alameddine to Mr Alou took place at this time when the applicant was present.

The stop in Lane Street, Wentworthville

1. Shortly after, Mr Alou drove towards Lane Street, Wentworthville and the applicant followed. During the journey, Mr Alou spoke to Ms Perger. The conversation included the following: Ms Perger: "Did you do what you had to do?" Mr Alou: "No, I just - ah, no, I was just - I didn't do nothing. I had nothing to do. I was muckin' around with you, bro" Ms Perger: "You what?" Mr Alou: "I had nothing to do in the first place…I was just at Parra Mosque…just read a few verses read some Koran and that's it…(indistinct)… … I'm goin' to - I'm just goin' to eat with, ah, what do you call it, one of the boys, brother Musti, and then…and then God willing…(indistinct)…God willing I'll - I'm goin' to wait for the…(indistinct)…I'm goin' to wait for Jad - to give me a call, give me a message and we're all set and we'll come---". [113]
2. At about 2:14pm Mr Alou called Mohammed Salihy, during which he said: "…I'm just, ah, gunna go to my house, drop off my car…Mufti Dirani and just gunna, yeah, you know, kick back and that". [114]
3. In reply to Mr Salihy asking "what are you gunna do today?", Mr Alou replied: "I swear…I don't know, man. I wanna kick back and - I wanna go eat soon". [115]
4. At about 2:16pm, the two vehicles arrived in Lane Street, Wentworthville and parked in the vicinity of Mr Alou's family residence. During the journey, the applicant commenced a phone call to a person called Wes which continued after he had parked. The applicant remained in his car. At 2:24pm, Mr Alou stood near the passenger side of the applicant's vehicle. The applicant got out of his vehicle and walked around the back of his vehicle twice. The two men then stood on the footpath close to one another in front of 67 Lane Street, Wentworthville for some minutes, after which the applicant walked to and got into his vehicle.
5. Shortly before the applicant drove away from Lane Street, at about 2:38pm, Mr Alou retrieved a white object from the front passenger side of the applicant's vehicle. The applicant was not further involved with Mr Alou that afternoon.
6. A transcript of the text messages between the applicant and Wes on 2 October 2015 was tendered in the applicant's case (Exhibit 19). [116] The first text message from the applicant to Wes was at 10:37:12am. The next one was at 1:07:35pm; others followed until 3:30:17pm. The exchanges appear to be of a social nature. The exchanges included: The applicant: "Wake up you deb" The applicant: "Wow" The applicant: "You full missed jummah you prick" The applicant: "What's your street" Wes: "B street" Wes: "Millbrook place give me 15 shower this that" Wes: "This is work you got to wait for the boss" The applicant: "Na bro hurry" The applicant: "Come out" The applicant: "Guess what" The applicant: "Get my hat on the floor near the couch". [117]

Mr Alou returns to the Merrylands Oval carpark

1. About seven minutes after the applicant had departed, Mr Alou drove his vehicle to the Merrylands Oval carpark. Some ten minutes later, Mr Alameddine arrived on his bicycle. A white plastic bag was being carried on the handlebars. Mr Alameddine rode up to the driver's side door and leant into the window. The listening device did not capture much of what was said other than Mr Alou saying, "[d]o a good job". [119]
2. Mr Alameddine removed a white plastic bag from the front window of Mr Alou's car. After a short conversation, both men left the carpark. As Mr Alameddine cycles away, something can be seen swinging from the handlebars of his bicycle.
3. It was the Crown case that the unsuitable firearm was returned to Mr Alameddine at this time. The applicant's case was that the .38 Smith and Wesson revolver was not handed over at the first meeting at Merrylands Park but at this meeting when the applicant was not present.

Mr Alou returns to Parramatta Mosque

1. It is unnecessary to recount the surveillance material as to Mr Alou's movements when he returned to the Parramatta Mosque. It is sufficient to state that he arrived at the Mosque shortly after 3:00pm, where he met with Farhad Mohammad. It was the Crown case that Mr Alou left the Mosque at 3:48pm and went to his vehicle, returning with a .38 Smith and Wesson service revolver which had been obtained from Mr Alameddine. Mr Alou and Farhad Mohammad remained alone together in the female prayer hall for about seven minutes. It was the Crown case that during that time, Mr Alou provided the firearm to Farhad Mohammad. Mr Alou left the Mosque shortly after 4:00pm.

The shooting of Mr Cheng

1. Farhad Mohammad left the Mosque at 4:09pm, having changed into a long black robe, a dishdasha. As he left the Mosque, he made a one finger ISIS salute to the CCTV camera. At 4:24pm, CCTV footage revealed Farhad Mohammad walking along Charles Street, Parramatta where the NSW Police Headquarters were situated. Ten minutes earlier, Mr Alou had driven past the Police Headquarters.
2. At about 4:30pm, Farhad Mohammad walked behind Mr Cheng, who had exited the Police Headquarters, and shot him in the back of the head. After murdering Mr Cheng, Farhad Mohammad said "Allahu-akbar [God is great]". He then fired shots in the air and engaged in gunfire with two Special Constables during which he was shot dead. A note (Exhibit G) was found in Farhad Mohammad's pocket which indicated that the shooting was a terrorist act committed in the name of ISIS.

Mr Alou's conversations about money after the shooting

1. Shortly after he had left the Mosque and before he had driven along Charles Street, Mr Alou made a telephone call at 4:11pm to Ahmad Bakhtiari. The conversation included: Mr Alou: "Where are ya?" Mr Bakhtiari: "Home" Mr Alou: "Oh, cuz- can I come give you your money, your hundred bucks that I owed you?" Mr Bakhtiari: "If, like, if you - if you need it keep it with you, you know?" Mr Alou: "What?" Mr Bakhtiari: "I'm saying, like, if you still need (Foreign Language), you know, keep it with you for now" Mr Alou: "No, no, I got money. Praise be to God. I got some money, that's why". [120]
2. At 5:09pm, Mr Alou made another call to Mr Bakhtiari about the money. He said to Mr Bakhtiari: "Cuz, can you come down to mine real quick? … …because, cuz, I don't know I feel really, really sick, bro…'cause I swear I'm sick, brother … …call me when you're - when you're down. I'll just come down God willing. I'll give you money". [121]
3. At 5:24pm, Mr Alou called Mr Bakhtiari again who told him he would be there in five minutes and he was on the way. Mr Alou asked, "Was that fifty bucks or a hundred bucks?" Mr Bakhtiari replied, "It was hundred brother". [122] Mr Alou told Mr Bakhtiari he would be in the front of the house.
4. Another conversation Mr Alou had was with Ms Perger at 9:53pm. Their conversation in Mr Alou's vehicle included the following: Mr Alou: "…keep looking at this money, what, what do you want" Ms Perger: "Is that it" Mr Alou: "What do you mean is that it?" Ms Perger: "No the one you just had you said I keep looking at it" Mr Alou: "See this is from the brothers, but I don't touch that" Ms Perger: "Just pass it just pass it (indistinct)". [123]
5. On 3 October 2015, Mr Alou had a telephone conversation with Jalal Suleman. They discussed meeting up and also about seeing and comforting Farshad Mohammad. The conversation included Mr Alou saying: "…look, when Farshad.. when Musti comes let me just drop off his money … …I said I'd give the money to Musti , the brother just to put in the way and if he's - to put - get it out of the way so that that'll be just one thing 'cause I have his money. I don't want to in case I spend it, bro, because I wanna give it to him asap". [124]

2 October 2015

1. Between 6:27pm and 6:30pm on 2 October 2015, the applicant posted the following messages on the Bricks chat WhatsApp forum: "See the news" "Wow" "3 dead at parra" "Wait" "http://www.ninemsn.com.au" "I think they Muslims" "Ye no updates". [125]
2. Shortly afterwards, he posted a screenshot from Twitter of news feed from Sydney Morning Herald reporter Rachel Olding about the shooting at Parramatta and then posted, "This what's going on Twitter". [126] The applicant then posted "May Allah never take away our prayers" with a link to the image of a young boy praying next to his hospitalised father in Salah. [127] This post was followed by a screenshot from a Twitter feed of an NBC News article "BREAKING: Five U.S. service members among 12 dead after U.S. C-130 transport plane crashes in Afghanistan". [128]
3. It is apposite to note, as the applicant contends, there were a number of posts by him before he posted "May Allah never take away our prayers". It is the applicant's case that these posts are consistent with the applicant being surprised by what had occurred.
4. Between 7:43pm and 8:14pm, Mr Alou tried to call Mr Atai twice.

3 October 2015

1. Between 11:39am and 12:30pm, the applicant tried to call Mr Alou on five occasions before Mr Alou rang him at 12:31pm. In the conversation, Mr Alou said, "let's go eat, bro, I'm really hungry". [129] They further discussed where they should meet.
2. After further text messages and attempted calls, they met at the South Granville McDonalds at 2:15pm.
3. At 9:28pm, the applicant posted an image on the Bricks chat WhatsApp forum depicting a man giving an ISIS salute.

The exchange between Ms Perger and Mr Alou

1. Before I leave 3 October 2015, it is convenient to note that the applicant placed emphasis in his case on a conversation between Ms Perger and Mr Alou at 8:34pm. The exchange between them included: Mr Alou: "…I said Allah knows best and I got teary because (indistinct), he was crying he was crying my brother my brother (indistinct)" Ms Perger: "I don't see it" Ms Perger: "Far out man, (indistinct) Dirani, that's it" Mr Alou: "(indistinct), his eyes, [h]is eyes were watery they were red, cause he only found out, he only found out properly this morning". [130]
2. The applicant's Senior Counsel put to the jury that they could hear the words "Mustafa, Mustafa" after Ms Perger said "Dirani". It was the Crown's contention if that was said that Mr Alou was referring to Mustafa Elkholy. The applicant's Senior Counsel submitted that Mr Alou referred both to the applicant and Mr Elkholy as "Musti". The applicant's Senior Counsel submitted that the applicant had only found out on the morning of 3 October 2015 that the shooter was Farhad Mohammad which was inconsistent with the Crown's case that he was a member of the conspiracy.

4 October 2015

1. At 9:32pm on 4 October 2015, the applicant posted an image to the Bricks chat WhatsApp forum which stated "If you think "snitching" reporting etc whatever you want to call it, is British Islam, you are a Kafir [non-believer]". [131]
2. Minutes later, the applicant posted, "The path of hardship is rewarded greatly, for it is not an easy task to bear. Only those special people will taste the sweetness with in it". [132]
3. That night, the applicant changed the Bricks chat WhatsApp forum name back to Bricks.

5 October 2015

1. At about 10:00am, the applicant had an encounter with police who had been conducting surveillance of his property in an unmarked vehicle. Detective Senior Constable Dixon gave evidence that at the intersection of Booth Street and Macquarie Road, the applicant stopped his vehicle next to the police vehicle on the left hand side. The applicant proceeded to make gestures and mouthed words indicating that he wanted the officers to roll down the window. When the window was wound down, Officer Dixon heard the applicant ask two or three times, "Why are you taking photos of my house?" Officer Dixon said he may have responded, "I don't know what you're talking about". He said that the interaction was over fairly quickly.
2. Between 3:06pm and 3:16pm, there was a discussion between Hozan Alou, Mr Atai and the applicant on the Bricks chat WhatsApp forum about Farhad Mohammad's body during which the applicant asked to see photos. The exchanges between them included Mr Atai stating, "Allahu akbar the young brother had a smile on his face and his finger up" and the applicant stating, "There's no burial for the shaheed [Muslim Martyr]". [133]
3. Between 3:16pm and 3:37pm, the applicant posted on the Bricks chat WhatsApp forum that there were two cars outside his house today taking photos. He posted that he "chased them", they were "[c]owards", "[t]here was a great amount of fear on there face", he "pulled the chase" and "like wow dealing with babies here". [134]

6 October 2015

1. Between 1:13pm and 1:29pm, there was a discussion between Mr Alou, Mr Atai and the applicant concerning surveillance in his street. The applicant stated: "Wow these guys are so bad I was doing surveillance in my street And caught another car". [135]
2. Later that afternoon, the applicant recorded a video on his iPhone of himself talking, which he posted to the Bricks chat WhatsApp forum. The applicant stated, "Welcome to the surveillance show…where every angle is covered" while sipping on a slurpee and filming out his bedroom window. [136]

7 October 2015

1. On 7 October 2015, the applicant was arrested. A search warrant was executed at his residence in Booth Street, Marsfield and his motor vehicle registration number YRQ652. The items seized included $660 cash which was found in the applicant's bedroom.

8 October 2015

1. Detective Sergeant Forsyth's evidence included that on 8 October 2015 a resident of the unit block at 67-73 Lane Street, Wentworthville, Mr Saunders, found some mobile phones packaged together in bubble wrap and jammed under the door of a toilet block in the common area at the back of the unit block. [137] Detective Sergeant Forsyth agreed that police had been able to establish that these phones were previously used by Farhad Mohammad and Shadi Mohammad. [138]

Wickr

1. Detective Sergeant Forsyth gave evidence about "Wickr". The police officer was referred to Ex BM, which was a document prepared by Detective Senior Constable Eljarrar with respect to installations on the applicant's mobile phone. She agreed that two of the installed applications found on the applicant's phone were "Wickr" and "wickrshare". It was her understanding that police had no success in accessing any communications using Wickr in the case and that any message sent by Wickr, if sent in a certain way, would disappear over time.

Documentary material tendered in the defence case

1. In the chronological review of the evidence, I have referred to some of the documentary material upon which the applicant placed emphasis in the trial. Whilst I do not propose to detail each of the 32 exhibits tendered in his case, I will mention Exhibits 2, 31 and 32.
2. Exhibit 2 was Mr Alameddine's criminal history. Exhibit 31 is a compilation of the communications between Mr Alou and the applicant between 28 July 2015 and 3 October 2015 concerning "eating out" and Exhibit 32 is a compilation of the usage of the term "[m]illions" or "[m]illionaire" by the applicant when communicating with Mr Alou between 28 July 2015 and 28 September 2015 and with Mr Catovic on 4 October 2015.

Further consideration

1. In submissions, both at trial and in this Court, individual items of evidence have been separately considered. None of these items of evidence are indispensable intermediate facts that must be proved beyond reasonable doubt. Indeed, the trial judge rejected in R v Dirani (No 20) [2018] NSWSC 1153, at [19]-[20], the applicant's request for a Shepherd [139] direction that proof of the applicant acting as a lookout or conducting counter-surveillance activities for Mr Alou on 2 October 2015 was an indispensable intermediate fact requiring proof beyond reasonable doubt. No complaint is made about this decision.
2. The jury's obligation was to take all of the evidence together which included the evidence in the applicant's case.
3. As has been mentioned at [221] above, it was the Crown case that prior to the meetings with Mr Alameddine on 2 October 2015, the applicant provided emotional, religious and ideological support to Mr Alou and provided money to assist in the purchase of the gun.
4. Having reviewed the whole of the record (excluding the inadmissible parts of the evidence of CIN 1877), [140] I have concluded that when the evidence is viewed in combination, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was a member of the conspiracy to commit a terrorist act before the journey on 2 October 2015 and to reject as reasonable possibilities the explanations of innocence advanced by his Senior Counsel.
5. There was ample evidence for the jury to make this finding. Without specifically mentioning all of the WhatsApp forum posts and exchanges between the applicant and others which have been detailed in the review of the evidence, it was open to the jury to find: 1. At all relevant times, the applicant held extremist Salafist views. 2. He had a close association with Mr Alou and Mr Atai, who shared his extreme Salafist beliefs. 3. Mr Alou, Mr Atai and Farhad Mohammad were members of the conspiracy to carry out a terrorist attack. 4. In furtherance of the conspiracy, Farhad Mohammad left a black sports bag at the Parramatta Mosque. 5. On that very day, there was a high level of telephone contact between Mr Alou, Mr Atai and the applicant. Mr Alou called the applicant ten times and the applicant called Mr Atai seven times. It was open to the jury to find that this level of telephone contact supported the Crown's contention that the applicant was a member of the conspiracy at this time. 6. On the day Mr Alou picked up the black sports bag from the Parramatta Mosque (18 September 2015), the applicant recorded on his iPhone a video of himself saying: "Ladies and Gentlem[e]n, this is for all you pigs out there, you dirty mother dogs, you little hypocrites among us, you got nothing on us, we're coming for you, we're gonna dominate you, what you going to do". [141] 1. The words spoken by the applicant include "we're coming for you, we're gonna dominate you". It was open to the jury to find that this threatening message demonstrated the applicant's knowledge of the steps that were being taken towards the commission of the terrorist attack on 2 October 2015. 2. On 27 September 2015, Mr Alou posted the message on the Bricks chat WhatsApp forum which is quoted at [247] above, as is the applicant's response. Prior to the message being posted, Mr Bakhtiari had agreed to lend Mr Alou $100 and on the next day Mr Alou telephoned Mr Elkholy, who advised against conducting the transaction electronically as "dodgy records will show up". [142] 3. Later on that day, the WhatsApp chat exchange with Mr Alou included the applicant stating, "You didn't come past…Pick up the millions". [143] 4. Although there was evidence of previous loans made by the applicant to Mr Alou and his use of the term "millions", it was open to the jury to reject as a reasonable possibility that the applicant's offer of $50 was made for a purpose other than the purchase of the gun when the evidence is viewed in combination. 5. The contact between the applicant, Mr Alou and Mr Atai continued after 18 September 2015. On 20 September 2015, Mr Atai met Farhad Mohammad at the Parramatta Mosque. On the same day, Mr Alou called the applicant and the applicant attempted to call Mr Atai. 6. On the next day, Mr Alou and Mr Atai met X2 seeking to purchase a gun. Mr Alou and the applicant next met on 26 September 2015, on which day the applicant changed the Bricks chat WhatsApp forum icon to an image of armed militants with the caption, "RISE UP To The Call Of Ummah" (see [238] above). 7. It is unnecessary to refer to the other posts which are detailed at [245]-[251] above. It is sufficient to state that the applicant's post quoted at [251] above, upon which the applicant's Senior Counsel founded the submission that the applicant was not criminally involved, does not sit happily with the other posts made by him on 9 July 2015 (see [222] above) and 4 October 2015 (see [389] above). 8. Other evidence which the jury was entitled to take into account in finding that the applicant's offer of $50 was for the purpose of the purchase of the gun included: 1. Mr Alou's request for $100 was made to the members of the Bricks chat WhatsApp forum and not individually to the applicant. He had previously sought $200 from Mr Bakhtiari. 2. Mr Elkholy was concerned about "dodgy records" showing up and enabled a cardless cash transaction to take place. 3. In the afternoon following the exchange about "[p]ick up the millions" and meeting at Marsfield, the applicant sent the following post to Mr Alou: "If you need anything let me know. Patience Allah is the best of planners Do you think you will believe and not get tested?" [144] 1. On that night, the applicant changed the Bricks chat WhatsApp forum icon to an image depicting masked militants holding weapons, standing in front of a large ISIS flag. 2. It was open to the jury to find that not only were the applicant's post to Mr Alou and change of icon expressions of his extremist beliefs but were expressions of emotional, religious and ideological support for Mr Alou who at that time was experiencing difficulties in obtaining a firearm. 3. On the next day, Ms Perger telephoned Mr Alou during which she told him: "…Milad said to call your brother and tell him to come - send me your brother's number so that he can call your brother to tell him to come outside when he gets there 'cause he has to give him money or something". (See [260] above) 1. During this telephone conversation, Mr Atai's wife could be heard in the background saying, "don't say it over the phone". 1. It was open to the jury to find that shortly after 9:29pm on 29 September 2015, the applicant met Mr Alou at Bursill Street, Guildford. It was also open to the jury to find that Mr Atai attended the same premises before 10:35pm. Arguments were advanced by the applicant's Senior Counsel based on cell tower records that it was not the applicant who was seen walking with Mr Atai towards Marian Street. Senior Counsel also placed emphasis on the content of the exchanges between the applicant and Mr Alou for the submission that the meeting was about Mr Alou's family issues and had nothing to do with the conspiracy. [145] 2. In my view, the timing of the text, telephone calls and the cell tower records support a finding that Mr Alou, Mr Atai and the applicant met at Guildford between 9:30pm and 10:30pm. 3. The jury was entitled to find that this meeting was not confined to Mr Alou's family problems but had as its purpose the furtherance of the conspiracy. 4. The jury was entitled to reject the applicant's submission that the correct version of the 1:53pm car to car conversation on 2 October 2015 was contained in Ex 12 and concerned Mr Alou's brother Kawa. I have listened to the audio tape (Ex Q) and it was plainly open to the jury to hear the word "Parra" and not "Kawa". Furthermore, after listening to the tape, the jury would not be surprised that the applicant's versions of the conversation tendered in the first trial mentioned "Parra" and there was no reference to "Kawa". It was open to the jury to find that the correct version of the conversation was Ex P. 5. It was open to the jury to find, when Mr Alou said, "You know I told you when he's going to thing, did I tell you where? I told you, I said it (Indistinct) car", and further, "But it will affect, the brother, Parra, affect the masjid, mine, it will affect me", the reference to the "thing" was the planned terrorist attack about which the applicant had previously been told. It was further open to the jury to find that the applicant was told that the planned terrorist attack was going to affect Parramatta, the Parramatta Mosque and Mr Alou and the reference to "cause the brother's got heat and everything, he's got a lot of heat" was to Mr Alameddine. 6. This evidence supports the Crown case that the applicant was a member of the conspiracy before the journey on 2 October 2015. 7. The jury was entitled to reject the applicant's submission that "[c]an't get involved" should be heard as the applicant saying "I can't get involved bro" and what the applicant was saying was that he could not get involved in Mr Alou's family dispute. Whatever might have been meant by the applicant by these words, it is plain that he did not leave Mr Alou but sat on the wall with him in Merrylands Park for about seven minutes and remained after Mr Alameddine arrived.

The proviso

1. I am of the same view as the Chief Justice that a substantial miscarriage of justice has occurred and the proviso should not be applied.

Orders

1. Accordingly, I agree with the orders proposed by the Chief Justice.
2. N ADAMS J: I have had the considerable advantage of reading the judgments of both Bathurst CJ and Price J in draft.
3. I agree with the orders suggested by Bathurst CJ for the reasons provided. I am not satisfied that error has been established in relation to grounds 2, 4 and 5 but I am satisfied that error is disclosed under ground 3. It is to be accepted that CIN 1877's descriptions of surveillance, anti-surveillance and counter-surveillance techniques were based on his knowledge, skill and experience and were relevant to assist the jury in their consideration of the activities of the applicant on 2 October 2015. On that basis, I agree that no error is disclosed in the admission of the evidence of CIN 1877 summarised above by Bathurst CJ at [29]-[37]. The difficulty is that his evidence went beyond the scope of that admissible evidence to include opinions based on speculation and/or not based on any identified expertise. For my part, I found the evidence of CIN 1877 extracted by Bathurst CJ above at [49] and [53] to be particularly problematic.
4. The surveillance evidence was that although the applicant initially parked his vehicle at Merrylands Park in a position that would permit him to see if any cars were following them, he then changed his vehicle's position to one which would have made it more difficult for him to at as a "cockatoo". CIN 1877's "expert" evidence about this was to the effect that although the accused's first position was "much better" for counter-surveillance, he still thought that the applicant was "being that support person for Mr Alou" in the second parked position. CIN 1877 later said of the second position, "[i]t's not the most opportune or best position probably to be in to see what's behind him, but its definitely achievable". Thus, the police officer was permitted to give "expert" evidence that although the applicant's actions were not obviously consistent with him acting as a lookout, it was still technically possible that that is what he was doing and it was the opinion of the officer that that was in fact what the applicant was doing. That opinion was not based on any identified expertise and was a matter for the jury.
5. As for the exercise of the proviso, I have had regard to the fact that the evidence of CIN 1877 was directed at a critical part of the Crown case. As Bathurst CJ has concluded above at [137], it is simply impossible to assess the extent to which the jury took this evidence into account in reaching its conclusion. On that basis, I am satisfied that a substantial miscarriage of justice has occurred within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) and the proviso should not be applied.

Endnotes

1. Applicant's Submissions, 3 July 2020 at par 138.
2. Applicant's Submissions, 3 July 2020 at par 143-144.
3. Applicant's Submissions, 3 July 2020 at par 157.
4. Tcpt, 4 March 2019, p 1878(4).
5. Ex 32, p 1.
6. Ex 32, p 2.
7. Ex 32, p 4.
8. Ex 23, p 328.
9. Crown's Submissions at par 131.
10. (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14].
11. (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66].
12. (2020) 268 CLR 123; [2020] HCA 12 at [39].
13. Tcpt, 8 March 2019, p 22(8-28).
14. Tcpt, 8 March 2019, p 22(34)-23(22).
15. Tcpt, 8 March 2019, p 24(28-30).
16. Tcpt, 8 March 2019, p 25(27-29).
17. Tcpt, 5 March 2019, p 1974(41-42).
18. (1975) 133 CLR 82 at 104; [1975] HCA 42.
19. (2007) 228 CLR 618; [2007] HCA 13 at [46].
20. Barca v The Queen (1975) 133 CLR 82 at 104; [1975] HCA 42 quoting Peacock v The King (1911) 13 CLR 619 at 661; [1911] HCA 66.
21. (2013) 241 A Crim R 321; [2013] NSWCCA 317 at [109]-[110].
22. Ex C.
23. Ex C.
24. Ex BF, p 2-4.
25. Ex CE, p 2.
26. Tcpt, 21 February 2019, p 1335(24).
27. Tcpt, 25 February 2019, p 1469(50).
28. Tcpt, 25 February 2019, p 1470(1).
29. Tcpt, 26 February 2019, p 1574(40-44).
30. Ex BM, p 54.
31. Ex BM, p 34.
32. Ex P, p 782.
33. Ex 30, p 33.
34. Ex 1, p 2.
35. Ex 1, p 2.
36. Ex 1, p 3.
37. Ex 1, p 3.
38. Tcpt, 19 February 2021, p 1169(18-24).
39. Ex BM, p 119.
40. Ex BM, p 102.
41. Tcpt, 19 February 2019, p 1170(28), 1170(38).
42. Ex BM, p 103.
43. Tcpt, 25 February 2019, p 1526(50).
44. Tcpt, 25 February 2019, p 1527(11).
45. Ex BM, p 104.
46. Ex BM, p 231; Ex BU p 65-66.
47. Ex B, p 7.
48. Ex B, p 7.