Fattal & Ors v The Queen [2013] VSCA 276

[2013] VSCA 276

Court of Appeal (Vic)|2013-10-02|Before: Mr P, Nettle JA, Tate JA

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At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

2013-10-02

Before

Mr P, Nettle JA, Tate JA

Source

Original judgment source is linked above.

Judgment (440 paragraphs)

[1]

[2013] VSCA 276

[2]

[2011] VSC 681 (King J)

[3]

CRIMINAL LAW - Conviction - Conspiring to do acts in preparation for or planning of terrorist act contrary to ss 11.5(1) and 101.6(1) of Criminal Code (Cth) - Reconnoitring Holsworthy Barracks and seeking Islamic fatwa for armed attack on barracks - Whether convictions unsafe and unsatisfactory or otherwise unreasonable - Whether open to find accused committed acts in furtherance of conspiracy - Trial - Whether trial unfair by reason of Crown alleging lies evidencing consciousness of guilt against one accused but not another - Jury directions - Whether judge sufficiently directed jury as to need for Crown to prove intent to advance Islam through violence - Whether judge erred by creating new arguments for Crown - Inconsistent verdicts - Whether acquittal of some co-accused inconsistent with conviction of others - Indictment - Severance - Whether strength of Crown case against one co-accused so much weaker than strength of Crown case against another as to require that indictment be severed - Possible alternative verdicts - Whether judge bound to leave State offence as possible alternative verdict to Commonwealth offence charged - Constitutional law - Freedom of religion - Whether proscription of advancement of religious causes by violent means a law 'for prohibiting the free exercise of any religion' contrary to s 116 of the - Evidence - Whether evidence of accused's hostility towards Australia and her citizens to be excluded as evidence of which the probative value was outweighed by prejudicial effect - Whether judge sufficiently directed jury that evidence admissible against one accused not admissible against another - Whether judge erred in directing jury that some aspects of evidence important and others peripheral - (Cth), ss 11.5(1) and 101.6(1) - , s 116.

[18]

Hi, my name Wissam Fattal. Thank you to be care [sic] about my case, about this case. Many thin[gs] happen[ed] at the Court. I don't know why the jury said I am guilty [of] my charge about my intention. But my intention not clear about acting terror attack or acting; but my intention show prepare [sic, I was preparing] to go overseas. You can find it [sic, you can find that from the fact that] when I was in prison talk to [sic, I told] my friend I am seck [sic, seeking] to go [to] Saudi Arabia or Yemen to learn my religion, or [to] Lebanon. When I speak [spoke] to Mazen in Sydney, I told him about Lebanon [about my intention] to go there and he told the police. And one thing: Hamza he send to me letter when I was in prison; last letter I find in my property after they charge [sic, found] me guilty. I don't know if Patrick Tehan [QC] ... got it. I gave it to Nadia (solicitor). He [Mazen] rwiT [sic, wrote] I am in egipTian [sic, Egypt] waiting for you. The prison M.R.C. hid it from me and my relationship between me and Hamza very strong and he was my best friend. We prepare to go overseas for Jihad or knowledge about HolThwolThy [sic, Holsworthy]. Hamza he want me to go there, he was every time encourage [sic, all the time encouraging] me to go [to] Sydney. The police arrest[ed] me in Sydney for charge [of] assault, not for terrorism. They find me not guilty [by reason of] self-defence. Had fight with guys in Melbourne. Hamza told me run away to Sydney. At the court, he said he didn't know me I am [sic, know that I was] going to Sydney and he swear to the Bible after they find him. He know and he told me to pick me up from his car and he give me card secret phone number. When the police arrest me I have small bag and his number inside. The police said to the Judge this tissue paper at the court. They take photo for [sic, of] my small bag. They find cards phone numbers. Where is this cards? The police hid it. You can find it from the prove me against to kill innocent people [sic, you can find from it that I was against killing innocent people].

Hamza he told me to kill people here in Australia. I said no God forbid this. The reason is we talk about the war in Afghanistan. They kill innocent people you can find it from his recording: at the end he want me to do something in Australia. I said no, we going overseas. We talk about Australian soldier [who] kill[ed] two kids and their father. I was upset just at this moment, but I don't have any intention to do something in Australia. He advise me to go Sydney because the police want to arrest me. They attack my house 3.00 am in Melbourne, Hamza advise me, and the police watch me in Melbourne and take photo when I run away to Sydney, every step. Why didn't [they] arrest me.

He said to me his friend, name Ali (he look Arab he got short beard), in Sydney call me from his phone. I said give me his number. He refuse. He said you find him in Salafi mosk. The Police in Sydney take photo every step except the Salafi mosk area and around it. I meet him many time there and he give me phone to call Hamza. The reason is he want me to go to hol Th armisTaTion [sic, Holsworthy Army station]. I Left this phone in blue big bag, you can find my bag in photo. When the police arrest me, I said I need my bag. They said leave it, we take it for you. I told the legal team about Ali. They said we don't have [to] prove. But after the police arrest me, Mazen (the one in whose house I was living) he said at the court, one man he take my bag, he got short beard. Until now I don't get my bag. I have many STUFF important. Where is my bag? Why the Police didn't take it [for] evidence, and Ali Phone was inside. I didn't make intention. Ali take my bag. But one friend in prison, I told him my story and he like to read my case after he find it. And he told me that, you can find it from the witness Mazen.

Before I went to Army base, Hamza told me. I refuse it. He said to me, his friend Breaklieng work next to the base, he give good money, go any time and told him [sic, tell him] I am your friend; and, [at the] same time, have look to the base. If you look to camera [you will see that] I'm really look[ing] for job, when I was in Sydney. I am seek[ing] to find job.

About my relationship between me and Nayef about work: The police said [about] weapons, the[y] prove show Nayef he buy all the STUFF for Breaklieng. If we want to do terror act why he buy all this STUFF before I went to the Army base? Hamza Told me don't call me at all, I called [sic, shall call] you back. I said, give me Breaklier number. He said, he's next to station, you just go. Next day, after I can't remember, he send to me text message (I am for you everything for you) after I went to the Army base. At the court he said he didn't know I am in Sydney.

About Yacoub: Hamza told me to call him to get the address, but Yacoub he didn't send me back and he didn't; [he] was in Preston mosk. Hamza was there 5 minutes before I got message. He left and he got machine in his car to show he left. At the court, he said he have friends in Preston (Officers) and they know every thing. Why didn't [they] take photo from the public phone? The public phone had camera and they know about message. Why didn't [they] take fingerprints. That ... mean[s] one of these officers sent it. Easy to prove who's sent it from the police.

About Hassan: Who's told him to call me and ask me about the price, because Nayef ask me about the price each break and [at the] same time ask me did you go there. I don't told him at all. How he know? Why the police didn't arrest him?!!

At the end, I can't understand why you don't make attention about these points: I don't have any relationship with Somalian about who's give FATWA about Army base and ask?!! My FATWA between me and NayeF about money. You can find the proof. I am sorry about my English [it makes it] very hard to explain, but I wish [you] to study my case; you find more evidence. Thank you any way.

About Sydney: The camera never take photo [of] when I meet Alig. [I was in] street about one kilometre walking [and not] even one photo, most of my time there.

About the people [who] ask for Fatwa from middle east hub's. These people may be spy. Many spy come to the mosk [to] ask for Fatwas.

You must to drop this case. I don't know why you don't drop it?!!!! Plenty of cameras. The mosk let the police use them any time [to] catch these middle east[eners]. Why didn't [they] show at same day when I got the stage who's in moske? About my first charge, they use these cameras in mosk [as] evidence against me (assault charge), and I meet Hamza in mosk - only me and him. If they said Yacoub send this text, why didn't [they] catch him at the moske (camera) or phone box? Every step. But this is the most important part about ...more important [than] the assault charge. This is terror charge They [have] evidence, why they ignore it?,

I am not policeman. To prove what problem [I have] I can't read good English. Very hard. But I can explain more and understand good English. That's why I can't prove from the case.

Any way, God [be] with me,

Wissam Fattal

[56]

...

AWEYS: Where is my Merry-go-round?

AHMED: Your Merry-go-round is tomorrow, brother. What do you think?

AWEYS: Huh?

AHMED: Tomorrow Allah willing, make supplications.

AWEYS: Oh. Is it Saturday?

AHMED: Yeah, tomorrow, tomorrow; Allah willing. The women said they are busy today, so tomorrow. Tomorrow after Asir (Afternoon Prayers) we should get an answer Allah willing. If rejected, then it's a reject. Otherwise, we are the three of us, anyway. So, ... (Interjected).

...

AHMED: Yes. You told me that. But, even now you have to put the pressure on him. Honestly, he will bring it again. Last time you know, you remember it, All Loftiness to Allah. And I also told the Brothers. Man, do you remember the guys. The guys who [Pause] were, the place where. The issue I that told you, do you remember about Sheikh Abdirahman who was coming from Perth.

AWEYS: Yes.

AHMED: Don't you remember the issue of the crazy guys?

AWEYS: Yes.

AHMED: That issue, man, I have spoken to the guys.

AWEYS: Yes.

AHMED: They said, man, call us for the Sheikh, you know.

AWEYS: Our Sheikh?

AHMED: Yes.

AWEYS: Ready, ready.

AHMED: If the Sheikh says to them you are crazy.

AWEYS: What?

AHMED: If the Sheikh says to them you are crazy and leave these things.

AWEYS: Yes.

AHMED: We will get them good amount of money from them.

AWEYS: That's it then, it's ready. The man, tell them this man is a very famous man, and the media (Interjected).

AHMED: No. no. It doesn't matter. They know the Sheikh. But, you have to talk to the Sheikh.

AWEYS: I will tell the Sheikh the situation that exists and that those people need you and make them to talk to him.

AHMED: Yes.

AWEYS: That's normal. It's ready.

AHMED: No. But you tell him the issue, ok?

AWEYS: Yes. I will say to him there is that issue which exists, ok?

AHMED: Yes, tell him the issue. Say to him that these guys want to do this, and we are ... that there isn't much blessings for the Muslims in it, do you understand? Anyhow, you tell the Sheikh the truth.

AWEYS: Ok, ok.

...

[58]

...

...

AWEYS: There are men who are our colleagues and we are friends with but who came from the Middle East.

HAYAKALLAH: Yes.

AWEYS: They wanted and they have kept coming back to me all these days. They said that they would like to talk to Ammo to ask you a religious issue/matter for a specific question. They could not trust many other men. Therefore, they want to ask you this question directly. We will call you tomorrow and he would like to ask you this question for about five to ten minutes.

HAYAKALLAH: Can you explain to me the question that they would like to ask me so that I can prepare myself for it.

AWEYS: That is correct. It is good. I will tell you now in advance. As I have told you, these men from the Middle East. They are youth ... what can I say ... they are about five to six men now. Men who were their friends are imprisoned. Who we too knew each other earlier, but who were very close to them and their kinship have been imprisoned. They are imprisoned in this country. So, there are issues about these man having an intention to conduct operations here. We then disagreed between ourselves. We said - what if this endangers of all Muslims in this country/city/town, and they are saying we are not going to stay like this till you bring us a religious verdict. They also said that they do not trust the men, religious scholars, in this country like the sheikhs residing in this country. Hence, like your Sheikh they said like that Sheikh we would accept and that we will abide/ accept what he tells us.

HAYAKALLAH: Smart. May Allah bless you. Ammo, this is a religious questions. They are right. It is good. So, what they actually want is to do revenge and hit the enemy in the artery, no matter what happens. Isn't it that what they want?

AWEYS: Yes. What happened is that one thing. There are men, you, there are men and I don't not know if you have heard it before. Who are numbering up to ten had been imprisoned here. These people, you know these infidels they accused them of something. Anyhow, the men were convicted and are they are sentenced between ten to fifteen years of imprisonment. They were very good youth who were humble/poor and they were falsely framed for something that does not exist. These men are the ones that remained behind and we were nonetheless associates of them. But, we know them informally in general sense, and they are good people whom we are brothers. So, one of them came up with this story - to do something, here and against these men. He said the reason is you know that they are holding our men and you and I know that they are holding them in aggression. They invaded our Muslim lands in aggression and the army of this country where we are is currently away. He raised a lot of questions and he said we want to do something here. We will not just sit here and we could not go to your land as well, so he said what do we do then.

HAYAKALLAH: Very good, uncle. Allah willingly, make it tomorrow around this time. Allah willingly, I will find their sufficient answer. Allah willing...

[64]

...

AWEYS: Yes. If he says enter. It will be entered then, Laughs. All of us would enter.

AHMED: No, no, no. No way, man.

AWEYS: Laughs.

AHMED: But, do you know brother?

AWEYS: Yes.

AHMED: For me, I have read this matter/issue from many clerics, do you understand? So, if the Sheikh said to them come back to me tomorrow.

AWEYS: Yes.

AHMED: He doesn't want to be hasty on the matter. Do you understand? So, he would ask clerics. I am pretty sure of that. So, it should be waited just for tomorrow. But, I brother am on the opinion, brother, you know. Even you, brother, know this. It's that we have to look the interest, you know that.

AWEYS: Hey, don't be pessimistic of anything. Laughs.

AHMED: No. In Allah's Name. In Allah's Name. I am serious. In Allah's Name, the issue/matter (Interjected).

AWEYS_: If the clerics say enter, it would be entered, hey you_. Laughs.

AHMED: No. You go and enter.

AWEYS: Laughs. What?

AHMED: You enter.

AWEYS: If it's said to be entered, in Allah's Name, it would be assisted with. How is it? If it's said that it could be entered what have you go to do?

AHMED: You, shall I tell you something? For you, nothing much is left from December, brother. You just wait for your December.

AWEYS: What [sic, why] do I have to wait? Hey, it's the same here and there.

AHMED: In Allah's Name, it's not the same.

AWEYS: Yeh?

AHMED: It's not the same, brother. Our country, our Motherland!

AWEYS: In Allah's Name, you are a soft man. How's that?

AHMED: Our Motherland. Nationalism, brother!

AWEYS: Hey, it's not our Motherland. There is no Motherland here. Are you fighting for a country?

AHMED: Yes, country, brother, of course.

AWEYS: You are a soft man.

AHMED: I am here twenty years brother. Do you understand? Brother. I don't have anything, brother.

....

AHMED: And these guys spoilt/infected me, brother.

AWEYS: What?

AHMED: These guys spoilt/infected me.

AWEYS: These guys what?

AHMED: Have spoilt/infected me.

AWEYS: Guys spoilt/infected you, in Allah's Name. You are being soft and began to caress the head [of the infidel]. Laughs.

AHMED: Laughs.

AWEYS: For me, in Allah's Name, you count me on where the tough guys are in. I swear in Allah's Name. It it's said to be entered, I am included.[10]

[75]

The bushfire call is also relevant for much the same reason in that it demonstrates an attitude of great hostility to the country of Australia and its citizens. Whilst it is not really argued that it is not admissible evidence, the major argument is that it is grossly prejudicial and, pursuant to s 137 of the Evidence Act, it should be excluded.

Section 137 states, 'In a criminal proceeding the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.'

There is no doubt it has prejudicial overtones, but the prejudicial overtones are really the degree of animus and pleasure that the accused takes from the misfortunes that befell the citizenry of the country. Counsel relied upon the definition of 'unfair prejudice' contained in the ALRC Evidence Interim Report No 2 where they stated, 'By risk of unfair prejudice is meant the danger that the factfinder may use the evidence to make a decision on an improper, perhaps emotional, basis; id. on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the factfinder's sympathies arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the factfinder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence, the factfinder may be satisfied with a lower degree of probability than would otherwise be required.'

This is not, in my view, unfair prejudice of the level required. The jury will be told the manner in which they can use this evidence and that they must not use it in a way that is prejudicial. I do not perceive this as evidence of such a prejudicial level that a jury will be so affected as to not be able to follow directions about the manner in which they can use this evidence. Equally, it is highly probative evidence, and I am not persuaded that the unfair prejudicial value outweighs the probative value of that evidence.

[122]

FATTAL: Anyway, how are you? Brother, in relation to our issue - -

EL SAYED: Yes -

FATTAL: Eh, when I tell you, eh, then I might need money, okay?

EL SAYED: I, this is it, (sighs) I swear to Allah, over here, frankly, it's going well here. It's going well here.

FATTAL: No, man!

EL SAYED: Yes, by Allah. Eh, we can't talk over the telephone, man. Don't, don't, lest we err -

FATTAL: Yes, that's enough. I understand you.

EL SAYED: But, eh -

FATTAL: So, is it alright? Yeah -

EL SAYED: They want money.

FATTAL: This is it. This is it.

EL SAYED: At the moment, Allah willing, there's, there's a brother who's going to, eh, where (inaudible), I'm not going to mention names, I'm going to speak in riddles.

FATTAL: Okay. Okay. Okay.

EL SAYED: Do you know the brother who went with his wife and his daughter? You know him, he is with us.[30]

FATTAL: Yes, Yes.

EL SAYED: Yeah, there's a brother who's going from here to there. You know him. He's going, he's going on Sunday. I said to him, I asked him few questions and I said to him to ask few scholars over there, like few Sheikhs and then the answer will come to us here. Those people only fear Allah, Allah willing.

FATTAL: Yes -

EL SAYED: We said to him we wanted him to tell us [alternatively: we want this] and he said Allah willing and so on. I also asked another brother here who speaks to them, you know him, he speaks to them over there -

FATTAL: Mm -

EL SAYED: I also said to him, I said to him we wanted questions, we wanted, we wanted, we wanted to know if it was Halal (permissible in Islam) or Haram (impermissible in Islam). He said to me, 'For your eyes, Allah willing, I'll ask them for you'.

...

EL SAYED: Yes, but that guy, that guy, you know who he is, don't you?

FATTAL: Yes, yes, yes.

EL SAYED: Yes, that's it. Don't call him. It is best not to because because -

FATTAL: (inaudible)

EL SAYED: They're watching him. Because (inaudible)

FATTAL: Okay. Okay. Okay.

EL SAYED: What they said to him over the telephone was, they said to him, 'Are you, are you sleeping now?' It was ten o'clock. Abou Ramzi said to me, he said to me, 'I was at home sleeping and this means they're watching me and they know exactly what I'm doing'.

FATTAL: Okay. Okay. Okay.

EL SAYED: Yes, so do you understand me? So, eh, yes, I mean, here they'll be harassed and so on. And you, Allah willing, if you want to pass any message to him you call me as much as you want. I don't care.

FATTAL: May Allah bless you.

EL SAYED: By Allah, may Allah -

FATTAL: May Allah bless you. So, anyway, the goods are ready, Allah willing.

EL SAYED: What was that?

FATTAL: Listen, I, I, saw the situation there.

EL SAYED: Yes, yes, yes.

FATTAL: Yes, I saw. It's something very easy.

EL SAYED: By Allah?

FATTAL: Yes.

EL SAYED: And is there, is there, is there something good like -

FATTAL: No, no, the, to enter the work -

EL SAYED: I know, yes, yes -

FATTAL: The work, it's easy.

EL SAYED: By Allah? Thanks to Allah. That's very good.

FATTAL: I went there, I stro', eh, I strolled -

EL SAYED: Yes -

FATTAL: Do you know what I mean?

EL SAYED: Yes.

FATTAL: Yes -

EL SAYED: Be careful, be careful over the -

FATTAL: Yes, I understand you. Yes.

EL SAYED: Yes.

FATTAL: It's nice to stroll is nice and there is work and so on. Do you understand what I mean?

EL SAYED: Thanks to Allah.

FATTAL: And to enter the business, for a person to do business it's good. Do you understand what I mean?

EL SAYED: By Allah, it's very good. Allah willing. My Allah -

FATTAL: (inaudible)

EL SAYED: Make it easy for us .

FATTAL: You know what I mean?

EL SAYED: Yes, by Allah, by Allah -

FATTAL: But, eh, see, (inaudible), but, eh, I'll speak to you as to what happens, Allah willing.

EL SAYED: Allah willing. The Chaps are saying that they want to come up to yours. Did you, did you, did you find a place or stay at or what's -

FATTAL: Yes, thanks to Allah. It's worked out.

EL SAYED: By Allah? Have you found -

FATTAL: But there is no work. There is no work, Nayef.

EL SAYED: By Allah?

FATTAL: There is no work. I'm looking for work.

EL SAYED: But is there a, is there a place available?

FATTAL: Yes, thanks to Allah. Thanks to Allah.

EL SAYED: How much, how much is the rent?

...

FATTAL: And over here you'll be happy. Over here there [sic] are decent Chaps, they're all to your liking.

EL SAYED: By Allah?

FATTAL: Yes.

EL SAYED: Thanks to Allah. By Allah, this is very good. By Allah, Allah willing, if, if I come up - we'll go, we'll go stay up there couple of days and it'll be good, by Allah. We'll see (inaudible) -

FATTAL: (inaudible) whenever you want.

EL SAYED: Allah willing.

FATTAL: When you want to come, you'll come, Allah willing, you'll enjoy it, with the permission of Allah.

EL SAYED: Allah willing. Allah willing. We won't stay long. One two days and we'll go.

FATTAL: Yes.

EL SAYED: We'll, we'll see you, we'll see the situations and we'll speak to each other better.

FATTAL: Allah willing.

EL SAYED: Okay. Allah willing.

FATTAL: So, when, when are you intending to?

EL SAYED: I don't know. They were supposed to come up tomorrow but, eh, eh, Jamil said to me yesterday, he said to me they were going to postpone it. I don't know few days, I don't know, a week or something. I don't know (inaudible) ...

[136]

EL SAYED: (inaudible)

FATTAL: So those people then targeted the Moslems and the (inaudible) began. So, every time they saw a Moslem (inaudible). Yes. Allah, Allah is more knowledgeable, I believe that the enemies of Allah are the cause. Yes. Allah is more knowledgeable (inaudible).

EL SAYED: (inaudible) the kuffar not but it wasn't your intention to harm them. It wasn't intentionally.

...

FATTAL: They came on me, they came on me, actually, I made, they made a DVD for me, DVD. They questioned me. They spoke to me about the fight. It told them. I said to them they denigrated Islam (inaudible) Islam. Straightaway I didn't (inaudible) I said to them, 'Just like you (inaudible)' I said to him, 'America, the Jews, why are they doing fight fight against Afghanistan? Who was helping the Afghanistan army against the Russians? Weren't the Americans doing it? After that they started fighting them. The second thing was Iraq. They didn't have weapons. Saddam didn't have weapons. They then said we have to arrest Saddham. We kill him. Why he stay in Iraq?' We fight for you why you help him? This is what they're saying. I said to him, 'Islam peace Islam this'.

...

FATTAL: I heard that that piece of shit the Prime Minister has gone to Germany, Germany?

EL SAYED: Who's that?

FATTAL: The Minister, Minister, the Minister. I don't know.

EL SAYED: The Australian one?

FATTAL: Yes. He went so they can send, to encourage them to go to Afghanistan. May Allah fight them.

(inaudible)

EL SAYED: Allah is Great.

FATTAL: Who is he with

EL SAYED: Allah is Great, brother.

FATTAL: To kill, kill the innocents. This is so shameful.

EL SAYED: (inaudible).

FATTAL: Yeah.

EL SAYED: This is, this is, this is what the kuffar are like.

...

FATTAL: May Allah fight them. (Inaudible) those are, Allah says in the Koran, [Mohammed the Messenger of Allah and those with him are harsh against the kuffar and compassionate with each other (inaudible) such is their example in the Torah (inaudible) the Bible]. I (inaudible) the Bible to the Sahaba. (inaudible). (inaudible). Imam Malek explained it. He said, 'He who had wrath among the Sahaba has fallen into kuffur'. Wrath is not allowed.

[153]

If you go to paragraph 6 on page 2 of Exhibit 101, you will see the following: '6. In [addition], the expression "acts in preparation or planning for a terrorist act or acts", which is used in elements 1 to 5 inclusive, requires in relation to each of those elements that you be satisfied beyond reasonable doubt that the accused intended the acts in preparation or planning to be in preparation or planning for a terrorist act or acts, that is an act or acts having all the essential characteristics of a terrorist act.' It continues on to tell you what the characteristics of a terrorist [act] are. 'The essential characteristics of a terrorist act are set out in paragraphs 1 to 4 below. So for you to find element 6 has been proved, you must be satisfied beyond reasonable doubt', and then there are listed those characteristics beginning at the top of page 3.

...

Characteristic 2, and you notice there is an 'and'. That means they have to prove 1 and they have to prove characteristic 2. 'The accused intended that the acts in preparation would be for an action or threat of action to be carried out or threatened in Australia.' In relation to that, Holsworthy Army Base is in Australia, so that is not going to be much of an issue for you. '(a) with the intention of advancing a political, religious or ideological cause, namely the advancement of Islam through violence and', so this is in addition, '(b) 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,' and this is an alternative, '(c) with the intention of intimidating the public or a section of the public' ...

...

I need to make some further observations to you regarding these characteristics. As to the first, the Crown have to prove that the individual accused whose case you are considering intended that acts done in preparation or planning would be for the purpose of an armed invasion of Holsworthy Army Base. That is the first characteristic. The Crown must prove beyond reasonable doubt that that state of mind was held by the particular accused whose case you are considering ...

The second characteristic is that the accused whose case you are considering must have intended that there be an action or threat of action to be carried out or threatened in Australia with each of the two intentions stipulated in the document. The intentions are, first, that the accused must have intended it would be an action or threat of action to be carried out or threatened in this country with the intention of advancing the cause of Islam through violence. The Crown have to prove that intention beyond reasonable doubt. ...

... This is important because there are many actions or threats of actions that might appear at first blush to be consistent with the types of threats or actions made by a [terrorist], such as bombing of a major building or a transport system, and it may not necessarily fit within the definitions, so I will give you an example.

Busy Friday afternoon, Flinders Street station is substantially damaged by a deliberately planted bomb. It sounds remarkably like a terrorist offence, and the public would automatically think, 'Terrorism, the bombing was the work of terrorists.' However, the relevant legislation makes it clear that bombing of that kind, even if it were to cause substantial loss of life, damage to property, injury, would not necessarily be a terrorist act unless it could be characterised by the presence of each of the intentions I have referred to and which are set out in Exhibit 101, being, firstly, an intention to advance a political, religious or ideological cause and, secondly, an intention of coercing or influencing by intimidation the government or a section of the public. So, in the example I have given you, if it turned out to be the situation that the bombing was actually carried out by an angry ex-employee of VicRail who had been sacked, who was doing no more than seeking revenge on his ex-employer for sacking him, that would not fall within the definition of a terrorist offence, would it? No ideological cause; not religious cause; not done with the thought of intimidating government. It is just payback, so that is why it is important that you understand and deal with those matters, that it be a religious, ideological cause such as the Crown say here, the advancement of Islam though violence.

As I said, Islam in not on trial. It is the views and beliefs of the accused and their views of what advances Islam that you need to look at, not what an ordinary Muslim might think, not what other Muslims think, but about the views of these accused. What is it that they are intending to do, if you get to this point. ...

...

Five separate trials, five separate accused, five sets of separate considerations, but in relation to the first question, that consideration, one set of consideration basically will apply for all accused. That's the difference. That is why question 1 is a very fundamental question. It is, 'Have the Crown proved beyond a reasonable doubt that there was in existence at some time between 1 February and 4 August 2009 an agreement or conspiracy to do acts in preparation or planning for a terrorist act or acts?' That is the first question. The answer to that question would be applicable to each accused. You do not need to go and decide that five separate times because you are entitled to use all of the evidence to make that decision so as I continue on 'In relation to this question, you should consider all of the evidence in this trial with the exception of the individual records of interview of each accused. The Crown must prove beyond a reasonable doubt the matters raised in element 6 of the elements to prove that it was a terrorist act or acts for which the planning or preparation was taking place. It would not be sufficient if it was a conspiracy that any other objective or purpose, such as fraud. This is a question that requires only one decision and is applicable to each accused man.'[38]

[188]

... So the reference to bricklaying and the business is a pretty simple code, but it's a code, that it's the job, as is later referred to, the task, the business, whatever it might be, and we submit it means significant things in the context of this case; one, as this conversation shows, Fattal and El Sayed are speaking about something they've earlier spoken about ...

Returning to the text, after the bricklaying and so on, El Sayed says, 'Yes, yes, by Allah, it will, thanks to Allah, Allah willing, there's a lot of work, thanks to Allah, but we only need a mixer and a few other things as you know' to which Fattal says, 'Yes', and laughs, and El Sayed laughs. Again, these are matters for you as the jurors, but we submit that the laughter in that context after the reference to 'mixer' is because each of them recognise that he is not taking about a mixer to make cement or anything else, he is talking about, presumably, in a coded fashion, something that will assist the work, presumably you might think weapons, but that's a matter for you. But he is not talking about a mixer. The context of what they're talking about is obviously not bricklaying or business, it's something that needs the decision of a sheikh on a religious question ...

...

Then Fattal says, 'But I see, (inaudible), but I'll speak to you as to what happens, Allah willing.' El Sayed says, 'Allah willing, the chaps are saying that they want to come up to yours, did you, did you, did you find a place to stay?' And then he moves on, you might think, into what Fattal's position is, and the point of this, we say, importantly, is the next line after, 'Have you found a place', effectively is, 'Yes, thanks Allah, it's worked out'. Al Sayed at about point 5, 'By Allah, have you found -' Fattal: 'But there's no work. There's no work, Nayef.' 'By Allah.' Fattal: 'There's no work, I'm looking for work.'

In the context of what he just said, 'work' there is not what he was talking about immediately before, where he was saying, 'Do you understand, the task, the work is easy.' What we submit is, when he's asked about his own position, he said, 'Yeah, I found somewhere to stay', and you know he was staying at Mr Sawan's house, he rented a ro[o]m there. You know as at 1 April, he spent a few days, I think three, maybe four, it was not particularly clear, working for El Kurdi, you might think on probation with El Kurdi trying to work out whether he should take him on, and he decided he wouldn't take him on, and I won't go through that. So what Fattal is saying is, 'I don't have any paid employment and there is none up here, I can't find it, it's hard to find.' So in the couple of pages before, where he's talking about either the job or the business or the work, whatever it might be, it's clear, we submit, from what he was saying, and when he was saying, 'Do you understand' and the caution not to speak to the phone, he's not talking about paid employment, he's talking about the conspiracy, the target, that he's been to Holsworthy, and th[e] task, in the context of what they are talking about, the advancement of Islam by engaging in a proposed terrorist act, that's available, it's easy, but when he's asked, 'How are you going? Have you found somewhere to stay?' 'Yeah, I have, but I haven't found anywhere to work,' and the distinction between the two is immediate and obvious, we submit.

[235]

Where there is a dispute as to the terms of an out of court statement made by the judicial officer and plausible evidence as to the making of that statement, in my view the relevant principles do not require that the court first resolve that dispute by making findings of fact before applying the fair-minded bystander test. In a case such as the present, the objective assessment called for by that test should take account of the circumstance that there is a dispute concerning the conduct or statements relied upon. For that reason, evidence directed to enabling the court by a process of fact-finding to resolve that dispute was not relevant in this case.

The principal reason why in the present case the circumstances to which the reasonable bystander test is applied should include the fact of any dispute as to what was said, is that the relevant principles are concerned with appearance, rather than reality, and from the perspective of a fictional observer it chose to secure the outcome that the public have confidence in the administration of justice.

Circumstances giving rise to an appearance of lack of independence or impartiality may include that plausible allegations have been made of statements or conduct on the part of the judicial officer. ... A finding on the balance of probabilities that something was not said would not exclude in the eye of a fictional observer (or the court) the real and not remote possibility that it was said. Depending upon what is alleged to have been said, that possibility may carry with it the further and real possibility that the judicial officer might not bring an impartial mind to the question in issue.

...

If, as in this case, there is sworn direct evidence of an out of court statement or other conduct of the judicial officer, which is disputed by the officer, the fair-minded observer would approach the matter by considering whether, if what was deposed to had in fact occurred, the decision maker might not be open to persuasion. If that is the position and in the circumstances there remains a real possibility that the statement was made or other conduct occurred, the result would be that the fair-minded observer might reasonably apprehend that the decision maker might not be open to persuasion.[65]