Fattal & Ors v The Queen [2013] VSCA 276

CRIMINAL LAW - Sentence - Each offender sentenced to 18 years' imprisonment with a non-parole period of 13 years and six months - Whether sentence manifestly excessive - Amateurish operation - Application of three-quarters rule in determining parole period - Lodhi v The Queen [2007] NSWCCA 360; (2007) 179 A Crim R 470, R v Elomar [2010] NSWSC 10; (2010) 264 ALR 759, and Benbrika v The Queen (2010) 29 VR 593, considered.

CRIMINAL LAW - Sentence - Director's appeal - Whether sentence manifestly inadequate - Seriousness of offence and maximum penalty - General and specific deterrence - Protection of the community.

1 Following a trial of almost six months' duration in the Criminal Division, on 23 December 2010, each of Wissam Fattal (now aged 36 years), Saney Edow Aweys (now aged 30 years) and Nayef El Sayed (now aged 29 years) ('the applicants') was convicted of one count of conspiring to do acts in preparation for, or planning, a terrorist act, contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth) ('the Criminal Code'). Two other co-accused, Yacqub Khayre and Abdirahman Mohamud Ahmed, were acquitted of the same offence. After pleas in mitigation of penalty were heard on 5 and 6 May and 31 August 2011, on 16 December 2011 each of the applicants was sentenced to a term of 18 years' imprisonment with a minimum term of 13 years and six months' imprisonment. Each applicant now seeks leave to appeal against conviction and sentence on a range of grounds of appeal and the Director of Public Prosecutions appeals against what he contends to be the manifest inadequacy of the sentences.

2 For the reasons which follow, we consider that each of the applications and the appeals should be dismissed.

3 In brief substance, the Crown case at trial was as follows.

(1) Between 1 February 2009 and 4 August 2009 the applicants conspired with one another and unknown other persons to do acts in preparation for, or planning, a terrorist act.

(2) The proposed terrorist act was to attack the Australian Army Base at Holsworthy in New South Wales (the 'Holsworthy Barracks')[1] and to shoot and kill as many soldiers and other persons therein as possible.

(3) The intention was to advance Islam by violence for the purposes of coercing or influencing the Australian Government by intimidation, or alternatively to intimidate the public or a section of the public.[2]

(4) The applicants carried out the acts in preparation with the intention that the proposed terrorist act, if carried out, would 'cause ... either serious harm to a person, serious damage to property or a person's death, or create a serious risk to the health or safety of the public or a section of the public.'[3]

(5) Fattal's role in the conspiracy was to assess the susceptibility of Holsworthy Barracks to attack and provide encouragement, predominately to El Sayed, for the proposed terrorist act.[4]

(6) Aweys' role in the conspiracy was to seek a fatwa (a religious ruling from Muslim muftis as to whether it were permissible in Islam [halal] or impermissible [haram]) to carry out the proposed terrorist act, and to assist El Sayed also to seek a fatwa for the proposed terrorist attack.[5]

(7) El Sayed's role in the conspiracy was to obtain information from Fattal about the suitability of Holsworthy Barracks as a target for the proposed attack, pass that information onto Aweys and seek a fatwa.[6]

4 On 21 August 2012, Fattal filed a handwritten notice of application for leave to appeal against conviction in which in effect he advanced two grounds of appeal: (1) that the judge erred by withholding evidence from the jury; and (2) that the jury made 'many mistakes'. On 23 October 2012, he also filed with the Registrar a handwritten case in support of his application and, although he appeared unrepresented at the hearing of the application,[7] he made some oral submissions which more or less accorded with the contents of his written case.

5 It is convenient, therefore, to start with the written case, which was follows:

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

6 Some of the points made in the written case about the improper exclusion of evidence were advanced by defence counsel at trial. Principal amongst them was a contention that Fattal had no intention of staging an attack on Holsworthy Barracks and that in truth he had been set up by an undercover police operative, by the name of Hamza, to go there to look for work as a bricklayer at a building site close by. On that basis, defence counsel submitted, the jury could not exclude as a reasonable possibility that Fattal's visit to Holsworthy was entirely related to his attempts to find work as a bricklayer and therefore nothing to do with terrorism.

7 It was not suggested at trial that there was any further evidence which ought be taken into account but, based on what is said in Fattal's written case and was reiterated by him in the course of his oral submissions, we understand him now to say that there was evidence that a text message as to the address of Holsworthy Barracks was sent by Hamza to Fattal from a public phone box near the Preston mosque and that, if put before the jury, it would have demonstrated the truth of Fattal's contention that Hamza set up Fattal. It also appears from Fattal's written case, and he repeated in the course of his oral submissions, that there was a letter taken from him while he was held in remand which showed that, at relevant times, his intention was to go abroad to Yemen. He contended that the judge was in error in failing to identify and admit that evidence for consideration by the jury.

8 Those submissions face difficulties at several levels. Hamza gave evidence at trial, which presumably was accepted by the jury, that he was elsewhere at the relevant time and so could not have sent the text message. Hamza's evidence as to his whereabouts was corroborated by testimony of Detective Sergeant Peter Jones concerning a tracking device which was fitted to Hamza's car. There is nothing to support Fattal's claim that he was deprived of any letter which might have established his innocence. Nor was it explained why, if there were evidence that he had an intention of travelling to Yemen, that should be regarded as excluding or throwing doubt on the inference that he intended an armed attack on Holsworthy Barracks take place. Furthermore, it appears from the written case that, if there were any evidence of Hamza's involvement or of Fattal's intention of travelling to Yemen, it was known to defence counsel at the time of trial and an informed decision was made not to adduce it.

9 In those circumstances, we consider that the first ground of appeal must be rejected.

10 We treat the contention that the jury 'made many mistakes' as one that the verdict is unsafe and unsatisfactory. We also reject it. As the Crown submitted, there was a substantial body of evidence which linked Fattal to the conspiracy and to the overt acts which were carried out in furtherance of it. It included that on 24 March 2009, Fattal sent a SMS text message to Khayre from Sydney requesting the address of the Holsworthy Barracks. Later that day, Fattal spoke to Khayre by telephone and sought confirmation that he had received and understood Fattal's SMS text message. On 26 March 2009, Fattal spoke to Khayre by telephone and Khayre confirmed to Fattal that he was still awaiting the address of the potential target. On 27 March 2009, Fattal received by SMS message sent from the public telephone box near to the Preston mosque details of the whereabouts of the Holsworthy Barracks. The next day, 28 March 2009, Fattal took the train to Holsworthy Barracks station and there conducted a reconnaissance of the entrance to the barracks. On 1 April 2009, in further telephone conversation, El Sayed told Fattal that he had arranged for Khayre to travel to Somalia to request a fatwa for the proposed attack from a Somali sheikh. On 21 April 2009, Fattal met El Sayed and El Sayed reported to Fattal that Khayre had reached Africa but not yet Somalia. On 3 May 2009, Fattal met El Sayed and El Sayed reported to Fattal that Khayre had reached Somalia and had gone in pursuit of the fatwa. On 9 June 2009 Fattal met El Sayed and El Sayed reported to Fattal that he had spoken to a Somali sheikh about the fatwa and would speak to him again about it within a day or two.

11 There was also a further substantial body of evidence that Fattal was motivated by hatred and contempt of kuffar[8] Australians and Australian institutions. We deal with that evidence at greater length below in relation to Aweys' appeal against conviction.

12 Suffice it to say for present purposes that, taking that evidence together with the evidence of Fattal's direct involvement in the reconnoitring of Holsworthy Barracks and indirect involvement in procuring the fatwa for the purposes of the

12 proposed attack on the barracks, we think it was well open to the jury to be satisfied beyond reasonable doubt that Fattal was guilty as charged.

13 In his notice of application for leave to appeal against conviction dated 6 August 2012, Aweys advanced the following six grounds of appeal:

(1) The learned judge erred when she failed to correct the proposition put by the Crown, which was repeated in her Honour's charge to the jury, that as a matter of law the answer to the religious question did not matter, because the making of the request was a significant step in the planning or preparation for a terrorist act.

(2) The verdict of guilty was unreasonable and cannot be supported having regard to the evidence.

(3) The verdict of guilty was inconsistent with the verdict of not guilty in the trial of the co-accused Ahmed.

(4) With regard to remarks made by the applicant about the Victorian bushfires, the learned trial judge erred in failing to exclude those remarks, and further erred with regard to the directions given to the jury as to how it could use that evidence.

(5) With regard to evidence purporting to demonstrate the applicant's consciousness of guilt, a substantial miscarriage of justice was caused by the Crown treating the applicant differently to the co-accused Ahmed, and the learned trial judge not directing the jury with regard to the applicant's defence.

(6) A combination or aggregation of errors resulted in a substantial miscarriage of justice.

14 Central to the Crown's case against Aweys was an allegation that he committed an act in furtherance of the conspiracy by seeking opinions from two Somali sheikhs, Hayakallah and Abdirahman, as to whether it was halal or haram to carry out the proposed attack on the Holsworthy Barracks ('the religious question'). At trial, the prosecutor submitted in the course of his final address to the jury that, as a matter of law, it was irrelevant whether the Somali sheikhs answered the religious question 'yes' or 'no'; it was the act of asking the question which was the act in furtherance of the conspiracy. In giving final directions to the jury, the judge restated the substance of that proposition as part of her Honour's summary of counsel's arguments.

15 Aweys' first ground of appeal is in effect that the Crown's submission, and the judge's repetition of it as part of her final directions, were calculated to lead the jury wrongly to conclude that it was open to convict without being satisfied that Aweys' intention in asking the religious question was to further the conspiracy. Although the judge had earlier specifically directed the jury that they could not convict unless satisfied that such was his intention, counsel for Aweys submitted that, in order to dispel the misapprehension created by the prosecutor's address, it was necessary for the judge to reiterate her earlier direction as to intention and specifically to point out to the jury that the prosecutor's submission was incorrect in that it suggested that intention to advance the conspiracy was inessential.

16 We do not accept the argument. When the relevant parts of the prosecutor's address are read as a whole, they do not suggest that intention to advance the conspiracy was inessential. Nor did the judge's directions convey that impression.

17 The relevant parts of the prosecutor's final address were as follows:

I got to the stage of saying what is apparent in this conversation is also implicit in what Aweys asked Hayakallah and later Abdirahman, in pursuit of the fatwa, you might think, the question is, is it permissible in Islam, and that is a question of importance in the sense that it was in pursuit of the advancement of Islam, that the object of getting the fatwa was to ensure that the attack on the army base was permissible and then the benefits of being a martyr and all of [the] rest of it flowed ...

That is a factual issue, if you like, of what was going on. As a matter of law, and her Honour will tell you this, it doesn't matter to the questions of guilt or innocence, guilt being the verdict, we would submit, whether you get a yes or no because the offence is, the Crown says, of conspiring to take steps in planning or preparation of a terrorist act and the planning or preparation includes, the Crown says, the going to Holsworthy and ascertaining whether it was a suitable target, the barracks, and taking the steps of pursuing the fatwa. From the point of view of the elements of the offence, it does not matter what the answer is ...

18 The judge provided the jury with a document which set out each of the elements of the alleged offences, and took the jury through the document, effectively line by line. The document included the following:

In addition, the expression 'acts in preparation 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' to be in preparation for a terrorist act or acts that is, an act (or acts) having all of the essential characteristics of a terrorist act.

The essential characteristics of a 'terrorist act' are set out in paragraphs (1) to (4) below. So that for you to find Element 6 has been proved you must be satisfied beyond reasonable doubt -

(1) The accused intended that the acts in preparation or planning would be for an action or threat of action involving:

An armed attack on the Australian Army barracks at Holsworthy in New South Wales, Australia ...

19 The judge also provided the jury with a 'Decision Tree' which contained the following:

1. The accused, or at least one other party to the agreement, carried out an observable physical act in preparation or planning for a terrorist act (or acts) in furtherance of the agreement ...
2. In addition, the expression 'acts in preparation 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 that the 'acts in preparation' to be in preparation for a terrorist act or acts: that is, an act (or acts) having all of the essential characteristics of a terrorist act.

20 Finally, the relevant parts of the judge's charge included this:

If you go to paragraph 6 on page 2 of [the Elements of the offences document], 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' ...

...

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 the present case the Crown has undertaken the task of proving that each of the accused held those precise intentions in relation to the acts in preparation to be carried out in furtherance of the agreement...

21 Having regard to those directions, we see no reason to doubt that the jury would well have understood that Aweys' acts of seeking answers to the religious question could not be treated as overt acts in preparation or planning for a terrorist act (or acts) in furtherance of the conspiracy unless the jury were satisfied beyond reasonable doubt that Aweys intended thereby to advance the conspiracy to attack the barracks.

22 In effect, the judge left the issue to the jury on the basis that:

a) the Crown case was that, although Aweys may have hoped that the fatwa would be haram, he nevertheless sought the fatwa in furtherance of the conspiracy with the intention of thereby advancing the conspiracy and with the intention that, if the fatwa were halal, the proposed armed attack would be carried out; and

b) the defence case was that Aweys' intention in seeking the fatwa was not that it be in furtherance of the conspiracy but that it would result in an haram opinion so as 'to put any talk of a terrorist act to rest'.

23 Contrary to Awey's counsel's submissions, there was nothing wrong with the judge leaving the issue to the jury on that basis. In principle and in fact the Crown were entitled to argue that, although Aweys may have hoped that the fatwa would be haram, he sought the fatwa pursuant to his agreement with his co-conspirators with the intention of obtaining the fatwa in accordance with the conspiracy and, if the fatwa proved to be halal, with the intention that the attack be carried out. It was then up to the jury, as the judge directed them, to determine whether they were satisfied beyond reasonable doubt that Aweys' actions in seeking the fatwa were in furtherance of the conspiracy; always bearing in mind, as her Honour repeatedly instructed them, that they had to be satisfied beyond reasonable doubt that Aweys' intention in seeking the fatwa was that it be in furtherance of the conspiracy.

24 Counsel for Aweys contended there was a 'real problem' with the element of intention, inasmuch as the Crown ultimately relied on covertly recorded telephone conversations between Aweys and the sheikhs to prove Aweys' intention of entering into the agreement; to prove he took steps in preparation or planning for an armed attack on Holsworthy Barracks; to prove his intention that the attack on the barracks be carried out; and to prove his intention to obtain the fatwa from the sheikhs in furtherance of the agreement.

25 In our view, there was no such problem. The phone calls were not the only evidence on which the Crown relied to prove intention. They were part of a wide ranging circumstantial case. That included the association between Fattal and Aweys; Fattal's actions in reconnoitring the barracks; Aweys' actions in seeking the fatwa; the terms of his reports to his co-conspirators; and his subsequent conversations with Fattal from which it may be inferred that he associated himself with Fattal's attitudes towards kuffar Australians and Australian institutions. For reasons to which we shall come under the heading of Ground 2, we consider that, taken as a whole, that evidence sustained the inference beyond reasonable doubt that Aweys' intention in seeking the fatwa was to obtain the fatwa in furtherance of the conspiracy and, if the fatwa were halal, that the attack should proceed.

Ground 2: Whether the verdict of the jury was unreasonable

27 Under the heading of Ground 2, counsel for Aweys argued that the verdict was unsafe and unsatisfactory because, upon a fair interpretation of the covertly recorded telephone conversations between Aweys and other alleged conspirators, there was a reasonable possibility that Aweys hoped to obtain a negative answer to the religious question and thereby to prevent the proposed attack proceeding. Counsel relied in particular on the following aspects of those recordings:

(1) In a call of 1 May 2009 between Ahmed and Aweys:

...

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.

...

(2) In a call of 12 June 2009 between Aweys and Sheikh Hayakallah:

...

...

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...

(3) In a later call between Ahmed and Aweys on 12 June 2009:

...

AWEYS: Hey, anyway, I have spoken to Ammo.

AHMED: Yes.

AWEYS: I have raise[d] the issue, the guys.

...

AHMED: What happened?

AWEYS: I said to him, Ammo, there are men who are among our colleagues. But, who came from the Middle East. Who are our brothers that we stay here together. They wanted to ask you a religious matter/issue/question. And I told him that they are not quite convinced with the religious clerics over. They said we are quiet satisfied with Ammo. So, I told Ammo that it's possible that we may ring him tomorrow. And we would like if you could be available for a time of about ten to fifteen minutes to them.

AHMED: Yes.

...

AWEYS: I was saying that we first started it, we clashed with these guys that we said eeh (Interjected).

AHMED: But, have you told him the issue that these guys want to enter places and those activities?

AWEYS: I told him that they want to carry out activities. I even told him that there are guys imprisoned from them. Their friends!

AHMED: What?

...

AWEYS: I told him that there are guys imprisoned from them. That this country's men are away in war, you know that. They want to carry out those activities, and we told them that might bring problems. They then responded saying what you are talking about does not exist and if it's a religious mater/issue bring the sheikhs.

AHMED: Correct

AWEYS: So, we want you to put an end to the issue. In Allah's Name, he said, it's an important issue, and it's a religious matter/issue, so tomorrow around this time or slightly earlier, Allah willing. Anyway, tomorrow at 8.30. Tomorrow night at 8.30 it would be appropriately dealt with.

AHMED: Man, do you know what I am fearful of?

AWEYS: Yes.

AHMED: If the Sheikh says to the guys enter the place.

AWEYS: Yes.

AHMED: It's a catastrophe, brother.

...

28 We accept that there are passages in those conversations which suggest that Aweys hoped that the fatwa would be haram rather than halal and thus that the attack would not proceed. We also accept that, logically, that could be taken to imply something about Aweys' intention in seeking the fatwa. It does not follow, however, that the verdict is unsafe and unsatisfactory.

29 As Hayne J stated in Libke v The Queen,[9] it is not enough to render a verdict unsafe and unsatisfactory that the jury might have had a reasonable doubt about guilt. The test is whether upon the whole of the evidence the jury were bound to have a reasonable doubt. Here, upon the whole of the evidence, we consider that the jury were entitled to conclude that, although Aweys might have hoped that the answer to the religious question would be no, he was committed to obtaining the fatwa because that was what had been agreed upon and he was committed to the idea of the attack being carried out in implementation of the agreement if the fatwa were halal.

30 That appears most clearly in the following further passage from the conversation between Aweys and Ahmed on 12 June 2009:

...

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]

31 We add that, at the request of counsel for Aweys, we have listened closely to the recording of that conversation, and in particular to the laughter which occurs at several points in it. Contrary to counsel's submission, we do not consider that it conveys the sense that Aweys was speaking in jest when he said that, 'If the clerics say enter, it would be entered'.

32 Counsel for Aweys submitted that, even if that were so, it was still not enough for the Crown to show that Aweys sought a fatwa with the intention of obtaining whatever answer might be given. He argued that, unless Aweys' intention were one of obtaining only an halal opinion, it was logically impossible to say that, by obtaining the fatwa, he was committing an act with the intention of giving effect to the conspiracy. It also followed, counsel said, that the judge erred by failing to direct the jury to disregard the argument, advanced by the prosecutor in the course of final address, that it was sufficient for the jury to be satisfied that Aweys sought a fatwa with the intention of obtaining an answer to it regardless of whether the answer turned out to be positive or negative.

33 As we said when dealing with Ground 1, we do not accept those contentions. The conspiracy which was charged was one to do acts in preparation or planning for a terrorist act. The acts which were relied upon were the acts of reconnoitring Holsworthy Barracks in order to assess their susceptibility to attack and seeking a fatwa in respect of the attack. After the agreement had been entered into, Fattal reconnoitred the barracks and Aweys sought the fatwa. On the evidence, it was open to the jury to conclude beyond reasonable doubt that each of them so acted in pursuance of the alleged agreement and, therefore, that each of them did so with the intention of thereby carrying the agreement into effect.

35 Moving to Ground 3, counsel for Aweys contended that the verdict of guilty returned against Aweys was unsafe and unsatisfactory because it was inconsistent with the verdict of not guilty returned against Ahmed. Counsel submitted that, in the face of the passages of the covertly recorded conversations to which he referred in support of Ground 2, it was an affront to logic and common sense for the jury not to be satisfied beyond reasonable doubt Ahmed had the relevant intention and yet, at the same time, to be satisfied beyond reasonable doubt that Aweys had it. In particular, counsel said, it defied logic and common sense for Ahmed to ask Aweys to seek the fatwa, and for them both to take steps to obtain the fatwa, and yet for the jury to treat the two men differently. Ahmed's defence that he intended to prevent the attack by getting an haram fatwa applied with equal force to Aweys; especially given that the Crown had contended at trial that Ahmed had done 'exactly the same thing' as Aweys when Ahmed made further enquiries of Sheikh Hussein.

36 We do not think those submissions to be persuasive. In order to have a verdict set aside as inconsistent with a verdict returned against co-accused, an applicant must satisfy the court that the two verdicts cannot logically stand together, in the sense that no reasonable jury applying their mind properly to the facts of the case could arrive at the same conclusion. The respect which the law justly assigns to juries and the experience of the law that juries do follow directions to consider the case against each co-accused separately, means that the court is reluctant to find inconsistency unless the case is clear. Consequently, if there is some evidence sufficient to sustain the difference, the court is not inclined to substitute its own view for that of the jury.[11]

37 In this case, there is an essential difference between the evidence against Aweys and the evidence against Ahmed. Unlike Aweys, Ahmed was never recorded as saying that he would proceed with the attack. To the contrary, in his conversation with Aweys on 12 June 2009,[12] Ahmed stated plainly that he was not prepared to go ahead with the attack even if the fatwa were halal. He also referred to the fact that he had been in this country for 20 years and, on one view of the conversation, he implied that he now regarded Australia as his 'motherland' and so was not prepared to take action against it. All of that stands in marked contrast to Aweys' statement that, if the fatwa were halal, he would be involved in the attack and in marked contrast to Aweys' comments about the iniquity of kuffar Australians and what should be done about it. In our view, that was a fundamental point of distinction which, without more, would have justified the different verdicts returned against each man.

39 Ground 4 concerns the judge's refusal to exclude evidence of two covertly recorded telephone conversations in which it was suggested that Aweys had expressed satisfaction at the suffering of persons directly affected by the February 2009 bushfires ('the bushfire remarks'). The relevant parts of the two conversations were as follows:

WALID: Everything's okay then?

AWEYS: Everything's okay yeah nothing nothing but you know. You know these kuffars they had a big bush fire two hundred people died here man, in Victoria.

WALID: Yeah they tell me it's been very hot there.

AWEYS: Oh yeah do they?

WALID: Yeah ... fires they've been telling me.

AWEYS: They copped it man, they copped it I swear to Allah hard you know, bout two hundred people died you know, right around Melbourne, you know Whittlesea, all this aahh Healesville all around town.

WALID: That's very close man.

AWEYS: Very close, my brother, I swear to Allah. But anyway thanks to Allah, nothing no Muslims, thanks to Allah, all good, Allah willing. Ah it's the same story no one knows nothing so far thanks to Allah ... but you know they moved you house did they tell you?

AWEYS: He gave it to me you know. All good, Allah willing. Anyway I'll I'll send it tomorrow, Allah willing, and now, by Allah, this country is going down the drain man it's got a lot of crisis no more jobs you know quiet everything no money oh man.

WALID: The west, the west, I think is gone. The west, the west man, soon maybe give it 5 years, 6 years is going to be finished.

AWEYS: Man, I'm telling you tell the brothers keep it up be strong, by Allah, they are coming down these filthy people they are coming down man, they are coming down hard, by Allah.

WALID: (inaudible).

AWEYS: Yeah when, when, the whole nation is coming down first the economy comes down first. By Allah, factories shutting down, nothing here mate nothing barely anything. By Allah, I've never seen Melbourne like this then fire coming to them no water, the water storage is empty. They are copping hard man.

WALID: (inaudible).

AWEYS: Thanks to Allah, thanks to Allah, we say thanks to Allah, Allah willing.

40 In rejecting defence counsel's application that those remarks be excluded from evidence pursuant to s 137 of the Evidence Act 2008, the judge ruled that:

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.

41 Counsel for Aweys argued before this court that the judge's reasoning was erroneous. He also stressed recent decisions of the New South Wales Court of Criminal Appeal in which, contrary to some of that Court's earlier pronouncements, it has held that s 137 is not discretionary. Counsel reminded us, too, of the apparent willingness, if not obligation, of this Court to follow decisions of other intermediate appellate courts on questions of construction of uniform legislation.[13] On that basis, counsel contended, it was for this Court to decide for ourselves whether the probative value of the bushfire remarks was outweighed by the risk that they would cause unfair prejudice to Aweys, and he submitted that we should be so persuaded.

42 We do not consider that the judge was in error in declining to exclude the bushfire remarks evidence. In our view, the probative value of it very substantially outweighed any improper prejudicial effect which it might have had.

43 In the Crown's contention, it demonstrated Aweys' disdain of kuffars and more generally his contempt of western society at the time of entry into the conspiracy, the reconnoitring of Holsworthy Barracks, and the seeking of the fatwa. As such, it was important evidence of motive. Absent evidence of a motive, a rational jury might well not be persuaded that an Australian citizen living within the peace and protection of this country would engage with others to undertake acts preparatory to a suicide attack on Holsworthy Barracks. Knowledge, however, that Aweys despised Australian 'kuffar' as 'filthy people', and exalted in what he perceived to be the decline of Australian society, was a powerful reason to think that his actions and intention were as alleged. As Lord Atkinson observed in R v Ball:[14]

Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to shew he entertained feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased's life. Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his 'malice aforethought,' inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not.

44 Possibly, as defence counsel submitted below, there was a risk that, because of the intensity of the suffering inflicted by the bushfires, and the emotion and empathy which it evoked throughout Victoria and beyond, the bushfire remarks would weigh disproportionately with some members of the jury. But, to adopt and adapt the language of Brooking JA in R v Georgiev,[15] although the bushfire remarks may have been prejudicial, possibly even highly prejudicial because of the antipathy which they had the potential to engender, they were powerfully relevant to the matters in issue. Motive was an integral part of the Crown's circumstantial case of intent and thus, inasmuch as the bushfire remarks established motive, there was no error in their admission.[16]

45 In summary, s 137 refers to 'unfair prejudice'. The evidence of the bushfire remarks was necessarily prejudicial: evidence of hatred of Australians led before a jury of Australians will invariably be prejudicial. But it was not 'unfair' when the relationship between the prejudice and the offences which renders the evidence relevant is understood. It would be unfair to exclude such evidence, for that would mean that in cases of this crime evidence of motive could hardly ever be led.

46 Counsel for Aweys contended that, even if that be so, the judge erred in the directions which her Honour gave the jury concerning the use which could and should not be made of the bushfire remarks. In counsel's submission, given what he characterised as the emotive and dangerous nature of them, it was incumbent on the judge to direct the jury that, if there were a reasonable view of them consistent with innocence, the jury could not use them as evidence which made it more likely that Aweys intended to further the conspiracy.

47 We reject that submission. The evidence of the bushfire remarks was but one, albeit important, piece of evidence among the complex of circumstantial evidence presented against Aweys.[17] The jury were not bound to regard it as an essential intermediate fact in their process of reasoning to guilt and the judge was not obliged to direct them that they should so regard it. It was open to convict on the basis that the evidence taken as a whole established guilt beyond reasonable doubt even if the jury were not persuaded to any particular standard of proof that the bushfire

remarks implied a motive to further the conspiracy.[18] As the judge directed the jury, correctly:[19]

Circumstances can and do arise from time to time in which it can be established beyond reasonable doubt that a particular person committed a specific crime. No shadow of a doubt. Yet to the outside observer it is totally inexplicable. No-one can understand for one second what the reason was. We have crimes like this continuously. No-one can understand why. But people commit a crime.

Equally, you can have a situation where an accused person may be considered to have an unbelievably powerful motive, the strongest motive for committing a particular crime, but the evidence just does not disclose that they are guilty in any way of the crime. So, whilst you, a jury, can derive some assistance from the absence or presence of a motive in affecting the likelihood of participation of a particular accused in the crime, ultimately the absence of a motive cannot affect your judgment if you are satisfied beyond reasonable doubt of the guilt of an accused on the evidence before you, and equally motive cannot be used to make up for a lack of evidence. So if there is not enough evidence the motive does not make up for the lack of evidence. But in a circumstantial case what you are entitled to do is to look at it and say, 'Very well, it's a factor I will take into account, the presence or absence of a motive in respect of that particular accused person'. It is something you can look at in relation to the likelihood and probability.

...

48 Admittedly, if the jury took the view that motive was an essential step in their process of reasoning to guilt, they needed to be satisfied beyond reasonable doubt of the motive.[20] But the judge dealt with that possibility in two ways. First, as part of her general directions, her Honour instructed the jury that, if they regarded a particular fact as being an important part of their reasoning process, they needed to be satisfied of that fact beyond reasonable doubt. Thus:

That means you must be satisfied about the important facts upon which your inference is based, and you need to be satisfied that those important facts, if you are going to base your whole decision of guilt on an inference from those facts, you need to be satisfied those facts have been proved beyond a reasonable doubt.

Her Honour also gave the jury general directions on drawing inferences - arguably more favourable than the directions to which the accused were entitled[21] - that it was not open to the jury to draw any inference unless satisfied of it beyond reasonable doubt.

49 Secondly, the judge specifically directed the jury in relation to motive that, if they regarded motive as being an important part of their process of reasoning to guilt, they needed to be satisfied beyond reasonable doubt of the facts on which it was based:

Let me say if you are going to use motive as part of the overall circumstantial case against an accused person when assessing whether or not that person is a participant in the conspiracy, you need to determine that issue only on the balance of probabilities.

If, however - and this is the difference between the two, it depends how you use the evidence - if you are only going to use it as part of the overall circumstantial case you would need to be satisfied of those facts just on the balance of probabilities; but if you regard motive as a significant fact upon which you rely in coming to a conclusion in relation to the participation of a particular accused, then you would need to be satisfied of the facts upon which you base that conclusion beyond reasonable doubt. As I told you earlier, anything that you really direct[ly] base a decision of guilt upon, then you need to be satisfied of those facts beyond reasonable doubt.

So to direct the jury accorded precisely with the form of direction essayed by Dawson J in Shepherd v The Queen.[22]

50 Ultimately, the combination of directions, including her Honours' specific reference in the latter back to what she had already said in the course of the former, could have left the jury in no doubt that, if they were to infer a motive and regarded it as a significant fact upon which they relied in coming to a conclusion as to Aweys' participation in the conspiracy, they needed to be satisfied of the motive and of the facts on which it was based beyond reasonable doubt.

51 It is also to be observed that the judge took the commendable course of informing defence counsel, in advance, of the form of direction which she proposed to give and that counsel took no exception to what was proposed either before or after it was delivered. Given defence counsel's very considerable experience, his response to the judge's proposed form of direction supports our conclusion that the jury must well have understood that, if they were to infer guilt from motive or otherwise regarded motive as a significant part of their reasoning to guilt, they had to be satisfied of the motive beyond reasonable doubt.[23]

52 Finally on this aspect of the matter, the judge gave the jury specific directions that they were not to allow themselves to be prejudiced by the content of the bushfire observations. No criticism was or could be made of those directions.[24]

Ground 5: Separate treatment of Aweys' and Ahmed's defences

53 Ground 5 was in effect a complaint that a miscarriage of justice had occurred by reason of the Crown arguing that Aweys' lies to the police that he had not sought a fatwa were evidence of consciousness of guilt, while at the same time choosing not to argue that similar lies told by Aweys' co-accused, Ahmed, were evidence of consciousness of guilt. It was also contended that the effect of the distinction was accentuated by the following passage of the judge's directions:

The next matter I am going to deal with is what has been referred to as lies and an implied admission of guilt. You will recall that a number of counsel addressed you about lies, including the Crown. Lies can and do fall into two categories. In this case the Crown only rely upon the issue of lies, as demonstrating an unspoken or implied admission of guilt in respect of Mr Aweys and his statement in his record of interview about not ever seeking a fatwa from Somalia. It is described, because we always complicate things in the law, as 'post-offence conduct'...

Now, before I move on to that there have been other statements made by counsel for each of the accused telling you that their clients have not been entirely truthful in parts of their records of interview, or even actually saying that they've told lies in parts of their record of interview. The Crown do not rely upon those alleged or admitted lies or untruths as being lies that would amount to an unspoken or implied admission as to participation or involvement in this charge. So, it is only Mr Aweys to whom the later direction will apply.

In respect of all other accused, that is Mr Fattal, Mr El Sayed, Mr Khayre, Mr Ahmed, the situation with their lies is quite different, untruths or lies is quite a different situation.

The Crown rely upon the alleged or admitted lies told by the other accused in relation to the issue of credibility of the individual accused in relation to the statements made to the police during their respective records of interview ...

54 We think the complaint to be unjustified. Putting to one side the problem of ascribing injustice to Aweys because Ahmed was not tarred with the brush of evidence of consciousness of guilt, it seems to us that there was good reason to draw a distinction between Aweys and Ahmed. Aweys told police that, although he knew what a fatwa was, he had never had need to ask for one for himself or for anyone else. Plainly, that was a lie. Aweys was the medium for seeking the fatwa and in that capacity he sought a fatwa from both Hayakallah and Abdirahman. He also facilitated an opportunity for El Sayed to speak to a Sheikh Hussein about a fatwa. In contrast, although Ahmed said that he had never called anyone and asked for a fatwa, it was not suggested that he had. The Crown case against him was that he made 'attempts to contact a sheikh to ask for a fatwa' and spoke to Sheikh Hussein (in Somalia) 'looking for a sheikh', but not that he asked either Hayakallah or Abdirahman or anyone else for a fatwa.

55 In those circumstances, we see nothing unjust or unfair about the Crown relying on the clear lie told by Aweys as evidence of consciousness of guilt while eschewing the suggestion that Ahmed's arguably incomplete response to the question of whether he sought a fatwa should be interpreted as an implied admission of guilt. Apart from anything else, it would have been decidedly problematic whether Ahmed had said or done anything which amounted to a lie, still less could be construed as an implied admission of guilt.[25]

56 The judge gave the jury a comprehensive Zoneff[26] direction in respect of all accused and an Edwards[27] direction in relation to the lies alleged to have been told by Aweys. There was no exception taken to either of those directions. Before this court, however, it was contended that the Edwards direction was defective in that her Honour did not include among the range of possible alternative reasons for Aweys to lie that he feared that his explanation would not be believed. Counsel for Aweys submitted that the judge was bound to include that as a possibility because the defence case was that Aweys made the calls in the hope of preventing the attack on Holsworthy Barracks and feared that, if he admitted making the calls, his explanation would not be believed.

57 We are not persuaded by the argument. Although it would have been preferable for the judge to refer to the possibility that Aweys lied because he feared that he would not be believed,[28] there is no doubt that her Honour made clear to the jury that people can and do lie for all sorts of reasons other than consciousness of guilt. She instanced examples of fear, concern not to implicate others in Somalia, consciousness of involvement in seeking a fatwa for the commission of a fraud, mistake, confusion and inability to remember. In our view, that direction sufficiently dovetailed with counsel's argument that the jury would surely have understood that fear of not being believed was a possibility which they needed to consider.[29]

58 We are fortified in that conclusion by defence counsel's failure to take exception. In the circumstances of this case, we regard it as a strong indication that very experienced defence counsel were of the view that the directions given were adequate to convey to the jury the matters which needed to be considered. It confirms our impression that the jury could not have been left in any doubt that there were any number of reasons, other than consciousness of guilt, to lie about seeking the fatwa, including of course those which had been adumbrated by defence counsel in final address.

59 Ground 6 alleges a combination of errors which in aggregate amount to a miscarriage of justice. For the reasons already given, we are not persuaded that there were any material errors. Accordingly, we reject Ground 6.

60 El Sayed's notice of application for leave to appeal dated 20 January 2013 advanced the following 10 grounds of appeal:

(1) The verdict is unsafe and unsatisfactory having regard to the inconsistency between the conviction of the appellant and the acquittal of Khayre.

(2) The verdict is unsafe and unsatisfactory in that there was insufficient evidence to prove beyond reasonable doubt that the appellant held the necessary intent of 'advancing Islam through violence'.

(3) The trial miscarried due to the learned trial judge's refusal of the appellant's application for a separate trial from the co-accused Fattal.

(4) The learned trial judge erred when she failed to correct the following proposition put by the Crown and summarised in her charge to the jury:

...The Crown submitted that Mr El Sayed's view on the use of violence to advance Islam mirrored Fattal's and submitted that El Sayed agreed with Fattal in many of the custody conversations...

(5) The trial miscarried due to the learned trial judge's criticism of the appellant's defence, directing the jury not to accept the defence case.

(6) The trial miscarried due to the learned trial judge creating new arguments for the Crown against the appellant during her charge.

(7) The verdict is unsafe and unsatisfactory due to insufficient evidence to support a finding beyond reasonable doubt that the appellant was a party to a conspiracy.

(8) There was a substantial miscarriage of justice in trial, due to the fact that the jury were not given the option of determining an alternative offence, being the offence under the Terrorism (Community Protection) Act 2003 No 7, s 4B Providing documents or information facilitating terrorists acts.

(9) Under s 116 of the Commonwealth Constitution, the appellant was exercising his right to freely practise his religion, and a conviction to remain against the appellant will result in a substantial miscarriage of justice and is unconstitutional.

(10) A combination or aggregation of errors resulted in a substantial miscarriage of justice.

61 Under Ground 1 it was contended that the verdict returned against El Sayed was unsafe and unsatisfactory because it was inconsistent with the verdict of not guilty returned against his co-accused, Khayre.

62 In our view, that contention fails for much the same reason as we have held that Aweys' Ground 3 fails. In the case of both Awes and El Sayed, there was evidence of motive and, in the case of Ahmed and Khayre there was not. Indeed, in Khayre's case, there was such an absence of evidence of motive that defence counsel was able to argue that, when one looked at the evidence and the telephone calls to which Khayre was party, it was apparent that he regarded Australia favourably. The judge specifically directed the jury on the point of distinction as follows:

In respect of some of the accused men, the Crown have submitted that the motive or reason for their agreement to enter into planning or preparing for a terrorist act was one based on a significant dislike of, or contempt or hatred for this country, its armed forces, foreign policy and government.

The defence, on the other hand, in the cases of both Khayre and Ahmed, have referred to the lack of motive or reason for them being involved in such an offence. They have submitted that there are no calls or recordings that indicate or demonstrate any animosity or feelings of dislike towards the government, the people or the army of Australia. They have submitted that the Crown have not pointed to any calls in which expressions of this type are used by either of the accused men.

In relation to Mr El Sayed, the Crown argued that he was heard to be agreeing with expressions of animosity directed toward the Australian Government made by Mr Fattal during some of their discussions, if you remember, while Mr Fattal was on remand.

Ground 2: Insufficient evidence of intent of advancing Islam through violence

63 Under Ground 2, it was contended that the verdict of guilty was unsafe and unsatisfactory because there was insufficient evidence to establish that El Sayed's state of mind at the time of entering into the conspiracy and seeking the fatwa was one of advancing Islam through violence.

64 We do not accept that contention. As it appears to us, there was a large amount of evidence which implied that, at all relevant times, El Sayed's intention was most certainly to advance Islam through violence. On 1 April 2009, the day after Fattal had been to Holsworthy to reconnoitre the barracks, El Sayed called Fattal and discussed both Fattal's observations of what he had seen at the barracks and the arrangements which El Sayed had made to obtain a fatwa for the proposed attack on the barracks:

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) ...

65 On the same day, Fattal was arrested in Sydney on a charge of assault in relation to conduct in Melbourne and later was returned to Victoria where he was held in remand in the Metropolitan Assessment Prison. During a box visit on 21 April 2009, El Sayed had a conversation with Fattal in which El Sayed told Fattal that Khayre was in Somalia seeking a fatwa. It included the following:

...

FATTAL: How's Walid?[31]

EL SAYED: Thanks to Allah, I swear to Allah, he's the best, thanks to Allah, he's rapt.

FATTAL: (inaudible).

EL SAYED: Thanks to Allah, he's very happy.

FATTAL: I swear to Allah, brother, I find this, I swear to Allah the Great, the best way, I swear to Allah the Great. This one -

EL SAYED: I asked him, I asked him -

FATTAL: Don't hesitate, I swear to Allah the great, don't hesitate.

EL SAYED: I asked him, I said to him to ask the man in charge over there, I said to him to ask him, to explain to him our situation and to ask him what the best thing for us is, like, not to just give us whether it's halal or haram, but to give us what is better; whether to go to him or to stay here, what do we do, what way to do... so that we get the advice, we get the knowledge from him.[32]

FATTAL: We'll go quick because this time is all, it's all -

EL SAYED: Allah willing, we'll be patient, we'll be patient, brother. Allah willing, my hand can reach but we need - now my brother is in jail but he will get out in three or three and a half months -

FATTAL: Mm -

EL SAYED: But I'm certain that there is, Allah willing, there is, everything that we want is available. And if, if, I'm thinking, until my brother comes out, until the Fatwa comes out, (inaudible) we need time to collect and to do that, we need two three months, and my brother -

FATTAL: No, it's easy, when the Fatwa is there -

EL SAYED: It is easy but if it's Halal I like to do big hits if it's Halal. If it's Halal, I like to do not just, not just something like, like ten thousand is nothing -

FATTAL: All good. All good.

EL SAYED: It's nothing. Allah willing, we'll do good strikes like I said and the rest, Allah willing, we'll distribute it on the brothers.

FATTAL: (inaudible).

EL SAYED: Right?

FATTAL: Allah willing.

EL SAYED: Allah willing. May Allah regard you highly, brother. Allah willing, we'll be patient. Allah willing, we will be patient. We will be patient....

66 On 24 April 2009, there was a conversation between El Sayed, Fattal and Hamad during a further box visit. It included the following:

...

FATTAL: I swear to Allah the Great, I ran away not because I was scared of prison. I swear to Allah, it wasn't because of that. I just didn't want to hand myself in to, I didn't want to denigrate myself to the Kuffar.

EL SAYED: That's true, I swear to Allah.

FATTAL: Even if I were going to be bashed. I knew this would happen to me, that I would be humiliated and that I would be followed. I knew that (inaudible) I ran away. They caught me. (inaudible) Allah God of the Universe saw.

EL SAYED: True.

...

67 On 3 May 2009, there was a conversation between El Sayed, Fattal and Mohammed during a further box visit. It included the following:

...

FATTAL: (inaudible) one guy wants to kill himself. He was thinking about it. I spent about one hour talking to him. I go, 'There is Allah who created the Universe and He created everything.' He felt emotionally better after that, thanks to Allah. People need us. [We did not sent you except a mercy to human beings]. Those, the government, they're lies. They are enemies. I swear to Allah ...

...

FATTAL: Listen, we want to enquire if we can go to Yemen.

EL SAYED: Where to?

FATTAL: To Yemen because there are some brothers who are going to Yemen, ask Jamal [sic] for me. Isn't Jamal [sic] outside?

EL SAYED: Jamil.

FATTAL: Jamil. Jamil.

EL SAYED: Jamil, yes, he's here.

FATTAL: Yes, ask him, say to him that Wissam wants to go - I said to them here, I promised them, I said to them, 'I do not want this country. I want to get out of this country. I am not happy here' because they are fighting our brothers there. I said it to them. I said to them, 'You are killing our brothers the poor ones, this is terrorism what you are doing, it is not right' yes. I said it to them. I said it to them for the sake of Allah.

EL SAYED: Did you say that to them? What did they say to you?

FATTAL: I want to get out of this country to Yemen.

EL SAYED: Shall I speak to the lawyer then?

...

FATTAL: Alright, alright, ask him about the issue, okay?

EL SAYED: Allah willing.

68 On 12 June 2009, between El Sayed and Fattal during a further box visit. It included this:

...

FATTAL: What are you going to tell us?

EL SAYED: (inaudible) all good news, thanks to Allah, brother.

FATTAL: Yacub?

EL SAYED: Good news, thanks to Allah.

FATTAL: Yeah, thanks to Allah.

EL SAYED: Thanks to Allah. Praise is to Allah -

...

EL SAYED: It's not, it's not going easy, brother. I swear to Allah.

FATTAL: That's it, Allah, Praised and All Mighty He is -

...

FATTAL: You try and if not then - Listen, Allah is capable of everything.

EL SAYED: We'll do our best, brother. I swear to Allah. Because this is our biggest Jihad. This has the most benefit for us in the terrestrial life and in the after life.

FATTAL: Yeah. If it doesn't work out now it means that Allah, Praised and All Mighty He is, -

EL SAYED: That's correct. We'll try but we got to try properly, from our hearts.

...

FATTAL: They are spiteful. I swear to Allah the Great. They are enemies. They are the enemies of Allah. The Australians are enemies. I swear to Allah. All of them. All of them. Even th'... all of them. I swear to Allah. That's it, if you're such and such then that's it, you're not -

EL SAYED: That's correct, that's correct. I swear to Allah, they are targeting us ...

69 On 19 June 2009, there was a conversation between El Sayed and Fattal during a further box visit. It included the following:

...

FATTAL: Anyway, I sat down. ... And he was talking, talking, talking and talking. 'We are this, we are that, we are this, we are that' I said to him, 'What else? After, what you want?' Do you understand how? He looked at me and said to me, 'Are you doing organise, organisation of such and such here in Australia?' I said to him, I said to him, 'I want to ask you before you ask me' 'I want to ask you before you ask me I said to him, "Why are you sending, why are you sending the troops to (inaudible), I ask Allah for forgiveness they are going and killing the innocents in Iraq and in Afghanistan, I want to ask you?"'

EL SAYED: Yeah -

FATTAL: 'Why? Answer me' I swear to Allah, they all (inaudible), 'What's this? Is he crazy?' you know what I mean? I said to him, 'I want to ask you, not you ask me' I said to him, 'Who's, who's killing the innocents?' I said to him, 'I've never done any killing. You are killing the innocents.' I began having a go at them. I swear to Allah. (Inaudible), they started do you know how? He said to me, 'We only want to (inaudible) such and such, and you don't like violence'. I said to him, 'no, I don't like that (inaudible)', do you understand how? And then he said to me, he asked me, 'Do you have anything to do with such and such?' I said to him, 'I have nothing to do with anything' he said to me, he said to me, 'but I'm just asking you in relation to the Daawah (Call to Islam), the Daawah and so on' I said to him, 'With regards to the Daawah, no one can stop me from it'. They want to try to stop me from the Daawah. I said to him, 'No one can stop me from it. This is the job of the Prophets. And I am doing it and no one can stop me from doing it'.

EL SAYED: Yeah -

...

FATTAL: Did he speak to you with regards to the issue? Yesterday I spoke to him about the issue. He came to me yesterday.

EL SAYED: No, he didn't come to me.

...

70 On 26 June 2009, there was a further conversation between El Sayed and Fattal during a box visit. It included the following:

...

FATTAL: In the end I said to him, 'What do you want?' he said to me, 'We're just (inaudible)' ... I said to him, I said to him, 'I want to ask you before you ask me', he said to me, 'yeah'. I said to him 'you are sending armies to Afghanistan and Iraq'. I said to him, 'and you're asking those questions of me?' I said to him, 'I never in my life killed'. I said to him, 'you ask yourself, who are killing innocents in Iraq and Afghanistan alright'. I said to him, 'Answer me'. I swear to Allah, all of them (inaudible). What's right is right. It does not change. Do you understand what I mean?

EL SAYED: That's true.

FATTAL: So, he said to me, 'no, we're...' I said to him, 'You must speak to your government to stop this. This is oppression. This is not right. Go speak to them go on'. He said to me, 'Yes, yes, I'll try to speak' I swear to Allah.

(Laughter)

FATTAL: This is from the start (inaudible) 'What are you asking me?' you know what I mean? 'Who are you and who am I? You take a look at who you are and what youse are doing and look at me. I've never killed. (inaudible)'...

71 On 10 July 2009, there was a further conversation between El Sayed and Fattal during a box visit. It included this:

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.

72 In addition to those conversations, there was evidence of acts of the other conspirators in furtherance of the conspiracy which were admissible against El Sayed as a conspirator.

73 In total, we think there was a compelling circumstantial case that El Sayed joined the conspiracy with the intention that the armed attack on Holsworthy Barracks be carried out and that the barracks be reconnoitred and the fatwa be obtained in advancement of that objective for the purposes of preferring Islam by violent means.

74 Counsel for El Sayed contended that the prison conversations proved nothing about El Sayed's intention except that he was a devout Muslim, disagreed with Australia's military involvement in Iraq and Afghanistan and disagreed generally with violence. But the difficulty with that argument, as with others which counsel put in the course of his oral submissions, is that it takes each item of evidence individually and poses the question what that item of evidence proves by itself or whether that item of evidence taken alone establishes guilt beyond reasonable doubt. That is not the nature of the reasoning process to be applied to a circumstantial case. As the judge directed the jury, correctly, they were bound to consider each item of evidence individually but in the context of the totality and thus to decide upon the inferences to be drawn.[33]

75 Viewing the evidence as a whole, we think that there were compelling grounds for concluding that El Sayed agreed in Fattal's views as to the perceived evil of kuffar Australia and Australia's foreign policy and as to the propriety of taking the steps proposed because of it.

76 Counsel for El Sayed criticised the judge's directions as to the use which the jury were permitted to make in the case against El Sayed of the evidence of the acts of the other accused. We see no error in those directions. They comply with Tripodi v The Queen[34] and Ahern v The Queen[35] and otherwise are unexceptionable. We note, too, that no exception was taken at trial.

77 In the course of oral argument, counsel submitted that the views expressed by Fattal and apparently agreed in by El Sayed were no more critical of Australian institutions generally, or of this country's involvement in middle-eastern conflict, than the sort of informed views which one might read in a mainstream daily newspaper. Consequently, it was submitted, they fell far short of the kind of hatred of kuffar which would be necessary to found an inference that the conspiracy was entered into and carried out with the intent of advancing Islam by violence.

78 That submission also suffers from the defect of taking one aspect of the evidence in isolation and attempting to assess its effect without the context of other circumstances. When looked at in the light of other relevant circumstances, the views expressed by Fattal and agreed in by El Sayed appear to us to leave little room for doubt that the conspiracy was entered into and that the overt acts were carried out for the purposes of advancing Islam by the violent means of staging an armed suicide attack on personnel in or about the entrance to Holsworthy Barracks. After all, given the absence of any evidence of motive apart from that alleged, what else would be the cause of a group of disaffected Muslim fundamentalists, who frequently spoke amongst themselves of what they perceived to be the iniquity of kuffar Australians and the involvement of this country's armed forces in Afghanistan and Iraq, agreeing upon a plan to reconnoitre Holsworthy barracks and obtain a fatwa for the waging of an armed suicide attack on the Barracks?

79 Counsel complained that the judge erred in her directions to the jury by telling them, incorrectly, that El Sayed's counsel had admitted that the comments made in the prison calls between Fattal and El Sayed were 'outrageous'. That submission appears misplaced. The judge directed the jury to the contrary that what counsel had submitted was that El Sayed never said anything more outrageous than 'praise Allah' and that it was an expression which was used all the time and did not signify anything iniquitous let alone the advancement of Islam by terror. As her Honour put it:

Counsel says that there is insufficient evidence to [co]nclude El Sayed had any antipathy towards Australia or its people or that he demonstrated any support for violence in the name of Islam, or had any motive for revenge for or on behalf of anyone. The only matters that may be considered were dealt with by counsel, and most that could be heard in the way of expressions by El Sayed when Fattal was saying anything outrageous or demonstrating those sorts of views was on one occasion, the defence submitted, he said, 'praise Allah,' a common expression used all the time and not signifying anything, including support.

80 Counsel for El Sayed contended that the judge had further erred by failing to make clear in her explanation of the elements of the offence that the Crown was required to establish that, at the time of entering into the alleged conspiracy, and at the time of committing the alleged overt acts in furtherance of the conspiracy, El Sayed had the intention of advancing Islam through violence.

81 That submission is also unsound. The judge gave the jury both written and oral directions as to the elements of the offence and each made unmistakably clear the need for the Crown to prove the requisite intent beyond reasonable doubt. Thus, in the elements of the offence written directions, the judge included this:

The essential characteristics of a 'terrorist act' are set out in paragraphs (1) to (4) below. So that for you to find Element 6 has been proved you must be satisfied beyond reasonable doubt:

(1) The accused intended that the acts in preparation or planning would be for an action, or threat of action, involving:

An armed attack on the Australian Army barracks at Holsworthy in New South Wales.

AND

(2) The accused intended that the acts in preparation or planning would be for an action or threat of action to be carried out or threatened in Australia:

(a) with the intention of advancing a political, religious or ideological cause, namely the advancement of Islam through violence;

AND

(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;[36]

OR

(c) with the intention of intimidating the pubic or a section of the public.

AND

(3) The accused intended that the acts in preparation or planning 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:

(a) serious harm, that is physical harm, to a person;

OR

(b) serious damage to property;

OR

(c) a person's death;

OR

(d) danger to a person's life, other than the person taking the action;

OR

(e) the creation of a serious risk to the health or safety of the public, or a section of the public. ...

NOTES

A person has 'intention' with respect to a result, such as the result referred to in each of characteristics (3) and (4), if that person means to bring about that result or is aware that it will occur in the ordinary course of events ...

82 Similarly, in the decision tree, there was this:

1. In addition, the expression 'acts in preparation 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' to be in preparation for a terrorist act or acts: that is, an act (or acts) having all of the essential characteristics of a terrorist act

The essential characteristics of a 'terrorist act' are set out in paragraphs (1) to (4) below. So that for you to find Element 6 has been proved you must be satisfied beyond reasonable doubt:

(1) The accused intended that the acts in preparation or planning would be for an action or threat of action, involving:

An armed attack on the Australian Army barracks at Holsworthy in New South Wales, Australia.

AND

(2) The accused intended that the acts in preparation of planning would be for an action or threat of action to be carried out or threatened in Australia:

(a) with the intention of advancing a political, religious or ideological cause, namely the advancement of Islam through violence;[37]

AND

(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

(c) with the intention of intimidating the public or a section of the public.

AND

(3) The accused intended that the acts in preparation or planning 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:

(a) serious harm, that is physical harm, to a person;

OR

(b) serious damage to property;

OR

(c) a person's death;

OR

(d) danger to a person's life, other than the person taking the action;

OR

(e) the creation of a serious risk to the health or safety of the public, or a section of the public.

BUT

(4) The Crown must also prove beyond reasonable doubt that the action to be done or threatened was not advocacy, protest, dissent or industrial action.

83 Then, in the course of oral directions, the judge took the jury through the written directions, step at a time, as part of which her Honour specifically directed the jury that:

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]

84 In view of the clarity and detail of those directions, we think that the jury cannot have doubted that it was an essential element of the Crown case that El Sayed intended that the acts of reconnoitring the Holsworthy Barracks and obtaining the fatwa be in preparation for the terrorist act of mounting an armed attack on Holsworthy Barracks, and intended that the attack be carried out 'with the intention of advancing a political, religious or ideological cause, namely the advancement of Islam through violence', as opposed to fraud or revenge or as a result of some such other motive of the kind suggested.

85 Lastly, on this aspect of the matter, counsel for El Sayed submitted that the Crown had not adduced evidence sufficient to show that the conversations between El Sayed and Fattal were otherwise than in accordance with mainstream Muslim religious beliefs and he submitted, therefore, that the Crown case was in effect that it was a crime to be a Muslim.

86 We reject that submission. Regardless of whether the conversations were in accordance with mainstream Muslim religious beliefs, which we take leave to doubt, or in accordance with radical Muslim religious beliefs, as the Crown contended, it is an offence under the Criminal Code to conspire to do acts in preparation for, or planning, a terrorist act as defined. Consequently, it is wholly irrelevant whether a conspiracy to do acts in preparation for, or planning of, a terrorist act accords to mainstream Muslim theology or to radical Muslim theology or to both or to neither.

87 The argument advanced under Ground 3 was that the Crown case against El Sayed was so weak compared to the case against Fattal that any legitimate chance of acquittal which El Sayed may otherwise have had was at risk of being swamped by the evidence against Fattal, thus resulting in a miscarriage of justice. Accordingly, it was said, it was incumbent on the judge to sever the count pertaining to El Sayed from those which related to the other defendants.

88 That submission largely replicates one advanced at trial that there was a risk of the jury taking into account against El Sayed evidence of a statement made by Fattal before 1 April 2009, which was not admissible against El Sayed, concerning operations in Afghanistan and the killing of 'innocents' by Australian forces. As the submission was put at trial it was that:

[T]he jury, in looking at the words and interpreting the conversation on 1 April [2009] and drawing what inferences they can concerning the issue of reporting, in my submission, the risk is that they will impermissibly use the views held by Mr Fattal prior to it [1 April 2009] in interpreting why my client is saying and understanding and the purpose of that part of the conversation on 1 April [2009], because of his very close friendship and association with Mr Fattal prior to 1 April [2009], and subsequently expressed views, which are very similar to and the same as Mr Fattal's on that particular key topic. It becomes, in my submission, a real risk that they will use that material of Mr Fattal's on 10 March [2009] impermissibly when looking at and seeking an understanding as to what is being said between them on 1 April [2009]. And that happens in a much broader context and a related context, in my submission.

In the conversation on 10 March [2009], Mr Fattal deals with topics such as the terrestrial life. He deals with the caliphate, he deals with paradise and those concepts, and they are all intertwined with, for want of a better way to describe it, the issues of violence and the advancement of Islam through violence ...

... In fact, it's very hard to think of an example where Mr Fattal makes a religious reference of any sort of Islamic reference and my client, for example, disagrees with the opinion or saying that's not right, for example, so you have this body of evidence where very similar concepts are being discussed over a period of time subsequent to the 1 April [2009 conversation] which, in my submission, will swamp a jury when they come to look at - - -

89 In rejecting the submission, and thus the application for severance, the judge ruled that she was not persuaded that the evidence which was admissible against Fattal alone would deter the jury from complying with her directions as to what was and was not admissible against El Sayed. Her Honour said that:

... It will require directions to the jury to that effect [what is admissible against one accused and not another] as to what evidence is capable of being used and what evidence is not capable of being used.

I anticipate a jury will be capable of following, understanding and applying the law as it is made clear to them. It is done on many occasions in this court. Every time there are joint trials there are pieces of evidence that are not admissible against some.

The evidence complained of is strong, probative evidence in relation to the issue of the nature and extent of the conspiracy, and is admissible against all accused. I do not doubt that a jury can and will act upon the direction that whilst it is admissible for those purposes, it is not admissible against any accused apart from Mr Fattal for any other reason. It will be similar to the direction that is given in respect of records of interview which juries are capable of understanding and applying. I am not of the view that the evidence overwhelms everyone else's case. Whilst the evidence in respect of Mr Fattal is strong, it is also relatively strong in respect of each of the accused. It is different, though, and the difference does not mean that it is overwhelmed because of the evidence relating to Mr Fattal.

A lot of the evidence is cross-admissible. It would be a lengthy process to separate all these trials out, and whilst that is a factor, it remains a minor factor. The major factor is I do not consider that the admissibility of this evidence will, in fact, cause any unfair trial to the accused Mr Khyare, Mr El Sayed or Mr Aweys.

...

90 With respect, we agree with the judge. Severance may prove necessary or desirable where the evidence against one alleged conspirator is very substantially different to the evidence admissible against another[39] or in a cases of the kind essayed in The Queen v Darby.[40] Prima facie, however, conspirators should be tried together and, accordingly, an application for severance should be refused unless the convenience of them being tried together is outweighed by the risk of the jury taking into account against one of them evidence which is admissible only as against another.[41] In this case, that was not so.

91 Although the contents of the conversation of 10 March 2009 were inadmissible against El Sayed, they were of relatively little significance or weight compared to the evidence of the 1 April 2009 conversation and subsequent conversations between Fattal and El Sayed. At the same time, the large degree of cross-admissibility of evidence as between El Sayed, Fattal and the other defendants weighed strongly in favour of the cases against each accused being heard together.[42] In the result, it appears to us, as it did to the judge, that any risk or consequences of the jury taking the 1 April 2009 conversation into account against El Sayed was substantially outweighed by the need to try of the alleged conspirators at once.

Ground 4: Failure of judge to correct Crown submission

92 By way of Ground 4, it was submitted that the judge erred by failing to direct the jury to disregard a submission advanced by the prosecutor in the course of final address that it was open to the jury to take evidence of conversations which occurred between Fattal and Hamza before 1 April 2009 into account as proof of the case against El Sayed. The submission complained about was as follows:

Again, you'll understand the way the Crown puts this and her Honour will direct you that you have to be satisfied that at least one of the overt acts took place, and we say you should find, in fact, without difficulty that all those acts took place and they were carried out by El Sayed for the purpose of advancing the conspiracy.

In addition to the various things said and done, set out on that list [of overt acts], and calls I have referred to you, we submit to you that you can be satisfied that during the currency of the conspiracy, or during the period covered in the dates, that El Sayed held views on religion and the use of violence in support of religion which mirrored those of Fattal. The reason we put it like that is we submit to you that in the lengthy, in the many conversations which took place at the MAP or other custody centres where El Sayed and Fattal spoke, that usually, when you go through, you will see that Fattal expresses a view, and El Sayed agrees with it. That in the dynamics between them, and their relationship, Fattal would express it and El Sayed would agree with it. There are times when El Sayed expresses a view and Fattal is in agreement with him, but what we say is they held common views about the need to use violence and the legitimacy of that to advance Islam, and that Islam was under attack and the use of Australian soldiers was a manifestation of the oppression of Muslims by Australia, and that those things, as expressed by Fattal, were agreed and adopted by El Sayed in those many conversations.

93 We see nothing wrong with the submission. As it reads, and we think would have been understood, it does not suggest that the jury should or were permitted to use evidence of conversations to which El Sayed was not party in the determination of the case against El Sayed. By its terms, the submission was confined to conversations to which both Fattal and El Sayed were party and thus to propositions articulated by Fattal with which El Sayed might be though to have agreed. We do not consider that the jury would have taken the submission as going beyond that.

94 If there were any doubt about it, however, the judge several times specifically directed the jury that they were not to use evidence which was admissible only as against one accused in considering the case against another. For example:

It will be necessary for you to give the case involving each accused separate and independent consideration. You apply only the evidence which has been led and admitted in evidence against that accused. Where evidence is not admitted against a particular accused, you must not use it in any way in determining the issue of participation. ...

95 There is no reason to doubt that the jury would have complied with those directions.[43]

96 Under the heading of Ground 5, it was submitted that the judge erred by misdirecting the jury as to the strength of the defence case, as follows:

What has to be proved in the case is not every single fact which the Crown has called. What you have to find proven are the facts upon which each element of the offence depends. There is a real distinction, as you would appreciate after this length of time, you are close to being experts, there is a real distinction between the evidence which is given in a criminal trial, the whole of the evidence and the elements of the charge itself. Some aspects of the evidence are given simply to support the arguments which each side presents and an example of that given are the calls contained in folder 4, which are there predominantly at the request of defence counsel. They are not there to prove a particular matter they are not there to say, 'Look, this totally defeats the whole argument of the Crown in respect of this'. They are there to assist in the arguments that the defence are going to put forward, or have put forward. This is part of the material that they say you should look at. So it is not there as each piece of evidence being killer blows. It is a case of often just there so that an argument can be mounted properly and based upon something, because you cannot argue in a vacuum, you actually have to have evidence, as I told you at the beginning.

97 Counsel for El Sayed contended that the judge in effect thereby instructed the jury to ignore evidence, contained in folder 4, of El Sayed's work and business activities on which the defence relied to demonstrate El Sayed's innocent state of mind at relevant times. In counsel's submission, that evidence gave the lie to the Crown's contention that El Sayed shared Fattal's distaste for kuffar Australians and Australian institutions; and, in turn, showed that El Sayed lacked Fattal's motivation for advancing Islam through violent means. Thus, counsel submitted, for the judge to suggest that the jury could ignore it was tantamount to directing them to discard a critical part of the defence case.

98 At first sight, it might appear that there is something in that submission. Plainly, a substantial part of the Crown case against El Sayed was based on the inference that he shared Fattal's attitudes towards the perceived spiritual and political shortcomings of kuffar Australians and Australian foreign policy and, consequently, shared Fattal's views as to the propriety of committing terrorist acts against Australian institutions. Arguably, evidence that El Sayed was engaged in setting up a business at relevant times could have cast some doubt on that suggestion. Additionally, when we first looked at the point, it was not immediately clear what the judge had in mind in directing the jury that the evidence in folder 4 was not a 'killer blow' which wholly defeated the Crown case. Whatever effect it might have had was surely a matter for the jury.

99 As can be seen in what follows, however, a little later in the judge's directions her Honour clarified what she intended to convey by explaining that some of the evidence in folder 4 was important and that other aspects of it was peripheral; just as some of the evidence on which the Crown relied was important and other aspects of it were peripheral. Thus her Honour continued:

Equally, the Crown have many calls and conversations where the material is what could be described as really peripheral. Things such as arranging to pick someone up from work, calls indicating not being able to go to the Mosque, things of that nature. They're clearly just to support the arguments that the Crown put forward to show perhaps evidence of association between different accused. Yes, they know each other. That is all that establishes. So, although they are peripheral in nature they go, as do the calls in folder 4, they go to a point that the Crown want to argue. Folder 4 calls go to a point the defence want to argue. That's what it is. Not all pieces of evidence are truly significant. Some pieces of evidence, some calls, for example, are truly significant, and they have been argued in front of you by each of the counsel. They rely, the defence rely on certain calls, the Crown rely on certain calls, and they each say this demonstrates, this clearly demonstrates something. They are a significant piece of evidence. But there are many pieces of peripheral evidence. So you do not have to be satisfied of all of it being truthful, all of it being relevant. It is just the major fundamentals upon which you intend to base your decision are the ones you have to be satisfied of in terms of the evidence.

100 Later still, the judge put the defence argument squarely in relation to the significance of the evidence in folder 4, in terms which we think could have left the jury in no doubt that it was up to them to decide whether that evidence had the effect for which the defence contended:

Counsel [for El Sayed] submitted that it was clear that El Sayed commenced setting up a bricklaying business from 3 June 2009, and referred you to the various calls in volume 4, and that state of mind he said, is inconsistent with the alleged conspiracy. He [El Sayed] is moving on, building a business not consistent with someone intending to become a martyr or with being one of about whom Aweys says he speaks on behalf of on 12 June or 10 July, and he said in relation to the bricklaying, he continues, you will see from the volume 4 calls, in his efforts of building up that business right up until the time of arrest of 4 August...

101 In the result, we conclude that there was no misdirection of the kind contended for and, once again, we note that defence counsel took no exception at trial.

102 Finally, on this aspect of the matter, counsel for El Sayed submitted that, well before the judge began her final directions, her Honour made clear to the jury that it was her opinion that they should regard the defence case as irrelevant.

103 We do not accept that submission. The passage of the directions on which counsel based it appears to have been confined to the question of the relevance of telephone calls concerning renovation works which El Sayed carried out on his parents' home. When counsel for El Sayed asked for those calls to be read into evidence, the judge ruled that they were irrelevant, for the following reasons:

HER HONOUR: That's got no relevance either. I understand, and I have not interfered with the consistent repetitive calls relating to looking for a tow bar or looking for a trailer. I understand that is not disputed by the Crown, you have put it forward, they are in the calls and they are being repeated and repeated and repeated, that is fine, but as to him renovating something to do with his parents' house, that's got nothing to do with anything.

104 In substance, we agree with her Honour's ruling. The evidence of renovations carried out on El Sayed's parents' house was at the periphery. Logically, it might have been probative of El Sayed's state of mind at the relevant time but, as the judge determined, the connection between it and the facts in issue was so remote that it was right to exclude it. At common law, such evidence was regarded as insufficiently relevant or too remotely relevant to be admissible.[44] Now, under s 55 of the Evidence Act 2008, although there is no distinction between logical relevance and legal relevance,[45] evidence of a fact which is so remote from the fact in issue as to be a waste of time may be excluded in the exercise of discretion under s 135 of the Act.[46] As we perceive her Honour's ruling, that is what she did.

Ground 6: Judge erred by creating new arguments for the Crown

106 The thrust of Ground 6 was that the judge invented additional arguments for the Crown in relation to the call of 1 April 2009 and wrongly directed the jury that those arguments had been advanced by the Crown. The passage of the judge's directions in which her Honour was said to have done that was as follows:

The Crown relied upon a number of aspects of this discussion, including the references to, 'Do you understand?', when it is obviously not clear, and yet El Sayed indicating he did understand. References to 'the work being easy' are clearly nonsense when you think about it, as at that time he's unable to get work as a bricklayer, and you have to ask yourself is it remotely believable that they are talking about El Sayed relocating to Sydney and starting work up there with Fattal as employer bricklayers. You would have to ask why would he do that? Fattal cannot even get enough work as a bricklayer. He is only working as a brickie's labourer, and even that is problematic. Where are their contacts? What about all the tools down here, all the contacts down here? Why Sydney? Neither appears to know anyone there or know anything much about being an employer. El Sayed has to get a friend to advise him on how to quote on a small job down here. Why would they be talking about moving to Sydney to set up a business?

107 We do not accept the submission. As we apprehend the impugned passage of her Honour's charge, it was directed to the arguments advanced by the prosecutor in the following sections of the Crown's final address:

... 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.

108 In our view, her Honour went no further in her directions than to summarise or characterise the essential thrust of those arguments. It is also to be observed that, shortly after the judge gave the impugned directions, and the jury retired for the evening, there was an exchange between defence counsel and the judge as follows:

COUNSEL: Your Honour in terms of the Crown's argument in terms of 1 April extended the Crown's argument in terms of they certainly made the point why would you be secret about talking about work, but as I understood the Crown's argument it was not why would Mr El Sayed be going up to Sydney and where his tools might be.

HER HONOUR: I thought that was all - I'm not - can I say, and this is a real problem, I'm not parroting what the Crown say. I am putting my understanding. That's what I say to them, I'm putting my understanding of the arguments being put. I'm not going to tie myself down to, 'Oh my God I've said something that is a minute step beyond the Crown'.

COUNSEL: I appreciated that but in my submission it was a - - -

HER HONOUR: Do you want me to tell them it's a comment of mine? I'll do that.

COUNSEL: It's a new argument.

HER HONOUR: No, that's not a new argument, [counsel].

COUNSEL: Perhaps if I can reflect on that and I'll read - - -

109 Defence counsel told the judge that he would reflect on the point and read the transcript of it. In the event, however, he did not return to the matter at any point later in the trial. We assume that he concluded, as we do, that the matter was of so little consequence as to be immaterial.

110 In oral argument, counsel for El Sayed put Ground 7 on the basis that the act of seeking the fatwa could not be regarded as an act in furtherance of a conspiracy to commit an act in preparation or planning for a terrorist act; and, since the act of seeking the fatwa was critical to the Crown case against El Sayed, there was insufficient evidence to sustain El Sayed's conviction.

111 The Criminal Code does not define an act in preparation or planning for a terrorist act. Logically, however, in order for an act to be an act in preparation or planning for a terrorist act it must be of a nature which is connected with or otherwise calculated to advance preparation for the commission of the terrorist act.[47]

112 As was earlier noted, the fatwa which was sought from the Somali sheikhs was in the nature of an authoritative religious opinion as to whether it was doctrinally permissible (halal) or impermissible (haram) to carry out the proposed armed attack on Holsworthy Barracks. Counsel for El Sayed argued that, as such, it was inherently too far removed from the contemplated terrorist act to be conceived of as connected with or calculated to advance preparation of it. It was, he submitted, but a step in a process which was necessarily anterior to the alleged conspirators making any decision whether to commit a terrorist act; and it followed that, because the fatwa was sought at a time before any such decision was made, the act of seeking the fatwa could not logically be regarded as an act in preparation or planning for a terrorist act.

113 Counsel sought to illustrate the point by comparing the act of seeking the fatwa to an act of seeking legal advice concerning the legality of a proposed transaction. He argued that, since seeking legal advice for the purpose of deciding whether to enter into a transaction is axiomatically anterior to entering into the transaction, so too is seeking a fatwa in order to decide whether to enter into an arrangement to advance Islam by violence necessarily anterior to entering into such an arrangement. Hence, went the argument, since the fatwa once obtained was that the arrangement would be haram, there never was a conspiracy to commit a terrorist act.

114 We reject the argument. The problem with it is that it treats the conspiracy charged as if it were a conspiracy to commit a terrorist act rather than, as it was, a conspiracy to commit acts in preparation or planning for a terrorist act.

115 For reasons earlier explored, we allow that the conspirators may have contemplated the possibility of the barracks being found unsuitable for the attack and that the fatwa would be haram rather than halal. For that reason, we also accept that they may have contemplated the possibility that the attack would not proceed. Hence, it may be that, if the conspirators had been charged with a conspiracy to commit a terrorist act, the conditionality of their intent would have provided them with a defence.[48]

116 The essential point, however, for the present purposes, is that the conspiracy with which they were charged was not a conspiracy to commit a terrorist act but a conspiracy to commit acts in preparation or planning for a terrorist act; and, upon the evidence, we see no reason to doubt that, at the time of entering into that conspiracy, they had an unconditional intention to reconnoitre the barracks and obtain the fatwa in accordance with their agreement. Equally, when they later committed the acts of reconnoitring the barracks and obtaining the fatwa, they were acting in furtherance of their agreement so to act. Their actions were analogous to conspirators who have conspired to buy explosives in preparation for a proposed bombing attack on a city building. Although, at the time of entering into such a conspiracy, the participants might foresee the possibility that their attempt to purchase explosives will prove unsuccessful, their agreement to make the attempt is still a conspiracy to commit an act in preparation for a terrorist act. So, too, if their attempt to purchase the explosives in fact proves unsuccessful, their making of the attempt is still an act in furtherance of the conspiracy.

117 It is the same here. Although the applicants may have conceived at the outset of the possibility that their attempts to obtain a fatwa for the proposed terrorist attack on Holsworthy Barracks would result in an haram rather than an halal opinion and, consequently, that the proposed attack might not proceed, they nonetheless conspired to attempt to obtain the fatwa in preparation for the proposed terrorist attack. Equally, although their efforts to obtain the fatwa resulted in an haram rather than an halal opinion, their acts of obtaining the fatwa were nonetheless overt acts in furtherance of the conspiracy to obtain a fatwa in preparation for the proposed attack.

118 It follows, in our view, that it was well open to the jury on the evidence adduced at trial to be persuaded to the requisite standard that the conspiracy was to reconnoitre Holsworthy Barracks to ascertain its susceptibility to armed attack and to obtain a fatwa for an armed attack, in preparation for conducting such an attack; and, consequently, that the acts of reconnoitring the barracks and obtaining the fatwa were necessarily acts in preparation or planning for the proposed terrorist act of attacking the barracks.

119 Under the heading of Ground 8, counsel for El Sayed argued that a substantial miscarriage of justice resulted from the failure of the judge to leave to the jury for their consideration as a possible alternative verdict that the accused was guilty of providing documents or information to facilitate a terrorist act contrary to s 4B of the Terrorism (Community Protection) Act 2003 (Vic).

120 That submission also faces difficulties at several levels. In the first place, the authorities which deal with the obligation of a trial judge to leave a lesser alterative count to a jury are confined to lesser included offences; meaning offences of which all of the elements are necessarily included in the offence charged.[49] The State offence created by s 4B of the Terrorism (Community Protection) Act 2003 is not a lesser included offence of the offence of conspiracy to commit an act in preparation for a terrorist act contrary to s 11 of the Criminal Code.

121 In the second place, there is a body of authority that, apart from the obligation of a trial judge to leave manslaughter to a jury as an alternative to murder (where the circumstances allow),[50] there is no obligation on a judge to leave the possibility of a lesser alternative verdict to a jury unless defence counsel has applied for that to be done or at least where, as here, it may fairly be supposed that counsel's failure to request that the alternative count be left to the jury was the result of a considered decision.[51]

122 In the third place, there is no authority for the idea, and still less in principle to commend it, that the obligation of a trial judge to leave a lesser included alternative offence to a jury operates as between Commonwealth offences and State offences or vice versa.

123 In the fourth place, there is significant body of sentencing authority which implicitly supports the conclusion that there can be no such obligation as between Commonwealth and State offences.[52]

124 Counsel for El Sayed did not advance any oral argument against those difficulties, saying only that he made the point as a matter of form in order to be able to advance it at a higher level when and if the need to do so may arise. It suffices, therefore, to say that we reject it.

125 The argument advanced under Ground 9 was that El Sayed had a constitutional right to freedom of religion under s 116 of the Commonwealth Constitution and thus that he was free to seek the fatwa.

126 That argument fails in limine. Section 116 of the Constitution forbids the making of any law 'for prohibiting the free exercise of any religion'. It does not confer an absolute freedom of religion.[53] As Gummow J said in Kruger v The Commonwealth,[54] the preposition 'for' directs attention to the objective purpose of the law in issue and, as McTiernan J observed in Adelaide Company of Jehovah's Witnesses' Inc v The Commonwealth,[55] the section is most likely not aimed at executive action.[56] The question for the purposes of s 116 is whether the Commonwealth has, by

126 passing s 101.6 of the Criminal Code, made a law in order to prohibit the free exercise of any religion.

127 Clearly it has not. The proscription of the advancement of religious causes by violent means restricts the freedom of an individual to advance a religious cause by violent means. But, as Starke J observed in Adelaide Company of Jehovah's Witnesses' Inc v The Commonwealth, s 116 does not confer an unlimited licence to propagate or disseminate subversive doctrines[57] or, we add, to inflict violence upon others. It leaves Parliament empowered within the scope of its constitutional authority to enact laws reasonably necessary for the protection of the community and the interests of social order. There is no right in the name of religion or in pursuance of some perceived religious duty to the Almighty to disobey those laws;[58] the 'critical question is whether a law is reasonably necessary for the protection of the community and in the interests of social order'.[59] We think it plain beyond argument that s 101.6 of the Criminal Code is just that.

128 Finally, we note that, although there was a suggestion in El Sayed's written submissions that this matter attracted the operation of the Charter of Human Rights and Responsibilities,[60] the notion was rightly abandoned in the course of oral argument. Clearly, as a State enactment, the Charter cannot affect the proper interpretation of Commonwealth legislation any more than any other Act of the Victorian Parliament can affect the interpretation of Commonwealth legislation. To the extent of any inconsistency between the two, the latter, if otherwise valid, will necessarily prevail by reason of s 109 of the Constitution.

130 For the reasons we have stated, we consider that there were no material errors. Hence, a ground based upon the aggregate of a number of errors also fails.

131 At the conclusion of the hearing of the application for leave to appeal against conviction, counsel for El Sayed sought leave to add the following ground to the application:

The learned trial judge erred by failing to disqualify herself during the hearing of the trial of the appellant on the grounds of reasonable apprehension of bias, in the sense of pre-judgment.

Neither of the other applicants sought to mount a like case.

132 A number of affidavits relating to the proposed ground were filed by the applicant's solicitors.

133 One affidavit was sworn by Vu Anh Huy Nguyen, a former solicitor, who was struck off the roll of practitioners in 2010 after pleading guilty to charges of theft, false accounting and trust account deficiencies.

134 The circumstances leading to the making of Mr Nguyen's affidavit were set out in an affidavit sworn by El Sayed's solicitor, Mr Boden. The solicitor said that in June 2013 he had a telephone conversation with Mr Nguyen about an unrelated matter. He told Mr Nguyen that he was acting for a client who had been convicted on a terrorism charge, whereupon Mr Nguyen told him he recalled Justice King saying in a lift at Owen Dixon Chambers some 20 months earlier: 'I am going to lock up terrorists'.

135 Mr Nguyen deposed that in October 2010 a committal hearing on a charge against Mr Nguyen of obtaining financial advantage by deception was being held. At that time the Crown case against the applicants had not been concluded.

136 Mr Nguyen said that he was in a lift in Owen Dixon Chambers with his barrister, Peter Murley, and Justice King. Mr Nguyen swore:

I recall that Justice King entered the lift. Only my barrister, Mr Murley and I were in the lift. I recall Justice King greeted Mr Murley by asking how each other are. She then said: 'I'm going to lock up a terrorist' or words to that effect. Mr Murley made a non-committal reply or nodded, I cannot recall.

137 The account of the conversation given by Mr Nguyen in cross-examination was much less specific. The evidence was as follows:

Now, Mr Boden says you said to him words to the effect that her Honour said 'I'm going to lock up terrorists', plural. Your statement and your affidavit says 'a terrorist', singular? - - - Look, whether it's a singular or plural, I can't recall but I can recall the word being - the words 'locked up' and 'terrorist'. I can recall that clearly.

With or without intervening words? - - - I mean, it's just like the other time when I heard it.

Do you recall it with or without intervening words? - - - Intervening words in what sense?

Were there words between 'locked up' and 'terrorist'? - - - I just - yes.

There were? - - - I can't remember whether it was plural or singular if that's what you mean but I can recall the words 'locked up' and 'terrorist' said in that sentence.

138 Another affidavit was sworn by Mr Murley. He deposed:

I have had a speaking acquaintance with her Honour Justice King for most of her time at the Victorian Bar. I have no memory relating to this particular allegation by Mr Nguyen insofar as the conversation is concerned or otherwise. However, if Mr Nguyen's evidence is correct, I would have thought it the height of ignorance to ignore her Honour if she was present in the lift not in her robes and not pass some pleasantry upon meeting her.

139 In a report to this Court the trial judge denied uttering the words attributed to her.

140 The principle of apprehended bias was stated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy in the following terms:

Where, in the absence of any suggestion of actual bias, the question arises as to the independence or impartiality of the judge ... a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should be done and be seen to be done, a requirement which reflects the fundamental importance to the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

...

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the fear of deviation from the course of deciding the case on its merits.[61]

141 It was common ground between the parties that the fact that the jury, not the judge, was to determine the ultimate question of the applicant's guilt or innocence did not dilute the requirement that her Honour be seen to be impartial. As Cole JA said in R v Balick (No 2):

Here any decision of the guilt or innocence at the trial will not be made by the presiding judge. It will be made by the jury. Nonetheless the questions of discretionary admissibility of evidence might arise, and in subtle and sometimes imperceptible ways a judge may influence the attitude of the jury. It is of critical importance that the public and the accused have a confidence in the absolute and perceived impartiality of the trial judge.[62]

142 A question to be addressed at the outset is whether this Court should determine whether the judge did utter the words she is alleged to have said.

143 This question was considered by the New South Wales Court of Appeal in CUR24 v DPP.[63] In that case it was contended that comments by a judge at a social function directed to a class of criminal behaviour gave rise to a reasonable apprehension of bias. The solicitor acting for an accused charged before the judge on charges of indecent assault of females under the age of 16 swore an affidavit that at a morning tea reception the judge said:

Well you know what should be done with these paedophiles? They should be put on an island and starved to death ... They're all guilty. They're guilty.[64]

144 Meagher JA said that the apprehended bias principle was concerned with the impression which would be created in the mind of a fair-minded bystander. He continued:

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]

145 Meagher JA concluded that a fair-minded bystander would not consider it likely that the judge could not or would not put aside the view he expressed and be open to persuasion by the evidence or arguments presented on behalf of the accused. The statement was made, probably incautiously, on an informal occasion and was not expressed in relation to the applicant or any particular aspect of the applicant's offences or alleged offences. The bystander would understand that the judge should, consistently with his training in function, put the view he had expressed to one side and address the issues which arose in the proceedings.

146 Whealy JA agreed with Meagher JA. Basten JA also agreed with Meagher JA. As to whether the Court should resolve a dispute as to a judge's words or action, Basten JA said:

If the court were able to say that, even taking the applicant's evidence at its highest, it would not grant the relief sought, it would not be necessary to resolve the evidential dispute ... There will also be cases where there is reason to believe that the basis of the complaint is insubstantial, perhaps because the witness or the facts asserted lack self-evident credibility, in which case it may be desirable that any evidential dispute be resolved.[66]

His Honour said that it was appropriate for an appellate court to decide the case 'on the basis of facts as likely to have been perceived by the hypothetical lay observer' and said that such an observer would treat the judge's comments as flippant and would not think that the judge did not understand or was not willing to apply the basic principles of the criminal law.

147 In the present case, we are of the opinion that the basis of the complaint is insubstantial or, in other words, there is no plausible evidence that the alleged statement was made. Accordingly, we would resolve the evidential dispute in this case, leaving for another day the question whether an appellate court should determine disputed questions of fact in more equivocal cases.

148 In our opinion, the evidence given by Mr Nguyen is quite implausible. The trial involved five accused men, rendering a reference to one only, as initially deposed to by Mr Nguyen, unlikely. The applicants had already been locked up, for they had been refused bail. The remark by the judge was not placed in any context and appeared to be an announcement of no relevance to any of those in the lift. The remark was said to have been made in the presence of a person unknown to the judge. The barrister who was said to have been present has no memory of the statement which, if made, we would have thought was striking. Mr Nguyen deposed that he brought the judge's statement to the attention of Mr Murley. When the witness was asked about his recollection of the conversation, as distinct from subscribing his name to a form of words composed by a lawyer, his memory was hazy and he could not recall that the judge said she was going to lock up a terrorist or terrorists. The words he did recall, that is, the words 'lock up' and 'terrorist', without any specific recall of any other words, did not entail prejudgment or other form of bias.

149 It follows that the application to add the proposed Ground of appeal alleging bias should be refused.

150 In support of his application for leave to appeal against sentence, Fattal relied on manifest excess as his single proposed ground of appeal. Aweys and El Sayed also relied on a ground of manifest excess. In his written case Fattal emphasised the meagre nature of the conduct that he carried out in furtherance of the conspiracy. This was elaborated upon in oral submissions by senior counsel who represented him in this context.

151 It was submitted that Fattal's reconnoitre of the Holsworthy Army Barracks amounted to no more than a stroll in broad daylight to the army base, a stroll back to the train station and a looking back at the base. Fattal engaged in conversation with two unnamed civilians during his walk and glanced around when he arrived at the entrance to the base. He was alone, unarmed, and was dressed in causal clothes and carried a plastic bag. He approached the front gates. He made no attempt to enter the base. He had no camera. He made no drawings of the base. He told El Sayed of his visit and reported that the base would be an easy target. El Sayed told him of the progress in obtaining a fatwa from a Somali sheikh on the proposed attack. No attack on the army base ever materialised. How, so it was argued, could such scanty and inchoate conduct warrant a sentence of 18 years' imprisonment with a minimum term of 13 years and six months' imprisonment even if it is accepted that the purpose of the trip was to investigate the suitability of the base for a terrorist attack?

152 Her Honour recognised the undeveloped nature of the conspiracy when she said:

What is by far the most ameliorating factor that you have is the amateurish level at which you were all operating, together with the fact that this conspiracy did not advance to any significant degree.[67]

153 She recognised in particular that the acts engaged in by Fattal were of little if any assistance in furthering the conspiracy:

This was far from a sophisticated plan that you were hatching. The reality is that whilst in Sydney, having fled there as a result of the police looking for you in Melbourne, in relation to an assault charge, you went by train to Holsworthy Army Base. You had with you no writing materials, no cameras, plans, nothing in any way sophisticated or capable of recording what it was you saw. You walked as far as the gate of the army base, you did not attempt to enter, you would have seen nothing but the entrance gate and two unarmed civilians recording names, together with bush land and possibly part of a carpark. In terms of preparation it was of little or no use. It provided no information about whether anyone was armed, if there was a second gate entry, if there were locked gates further on, or any information that would help you to determine the suitability of the base as a terrorist target. I accept, consistent with the verdict of the jury, that you did in fact go there for the purpose of ascertaining its suitability and that you did, Fattal, pass that information on to Nayev El Sayed and indicate that it was a suitable place and an easy place to target.[68]

154 It was submitted that the sentence imposed failed to give sufficient weight to these observations by the sentencing judge that recognised that the acts of preparation by Fattal were, as senior counsel stated, 'at the lowest level imaginable'. It was submitted that to describe Fattal's conduct as a 'reconnaissance', as it was so described in the schedule of overt acts at trial[69] was a misnomer, the principal conduct amounting to 'a stroll' without any steps that amounted to an investigation or inquiry. Nor would those steps have led inevitably to a terrorist act, the sentencing judge not finding that it was inevitable that Fattal (or Aweys or El Sayed) would commit the terrorist act that was in the process of being planned.[70]

155 Furthermore, it was submitted, Fattal's conduct was no more than a 'stupid act by a stupid man'. There was evidence that Fattal was of borderline intelligence. This was accepted by the sentencing judge.[71] He was born in Tripoli, Lebanon and had left school at the age of 14, not having performed well academically. He commenced training for kickboxing when he was 15 and became successful as a professional kickboxer, winning the Arab Championship in Jordan when he was 22 and going to Europe, America and Australia as a professional kick boxer. He came to Australia at the age of 27 where he met his wife with whom he has a daughter and from whom he later separated. He travelled back to Lebanon for six months in 2005 during which time he was involved in a demonstration outside the Danish Embassy which resulted in a great deal of damage and his incarceration for three months. During this time Fattal became particularly strong and fundamentalist in his religion.

156 The sentencing judge accepted that Fattal's involvement in kickboxing resulted in various concussions and injuries that may well have exacerbated his low intellectual functioning. She also accepted that Fattal's lack of cognitive skills and his rather simple mind led to an inability to grasp anything in the way of complex ideas and this led him to become extremely fundamentalist and rigid in his ideas of the Islamic religion. She concluded:

[I]t is clear that a number of your fellow Muslims, from the Preston Mosque, held you in high esteem for your knowledge and devoutness in the application of your faith. However, your faith, and your interpretation of it, was such that you considered Australia, its government, its troops and its citizens were at war with the Muslims living in Muslim lands, in places such as Chechnya, Afghanistan, Somalia and the like. As indicated, I accept that you are a simple man, however, the rigidity and harshness of your views are consistent with you being a simple man. Unfortunately, your low intellectual functioning does not make you any less of a danger. As can be seen from the description given earlier, it does not require great skills to plan or organise an offence of this nature.[72]

157 It was submitted that her Honour failed to give sufficient weight to Fattal's cognitive impairment and failed to accept the manner in which that impairment had an impact upon the rational choices Fattal made at the time of his offending; in particular, whether he fully appreciated what a trip to Holsworthy army base might mean. A head sentence of 18 years, it was argued, did not properly reflect Fattal's intellectual impairment.

158 Counsel accepted that the Commonwealth Parliament has indicated that the offence of conspiring to do acts in preparation for, or planning, a terrorist act, contrary to sections 11.5(1) and 101.6(1) of the Criminal Code, is to be regarded as a serious offence by reason of criminalising conduct that would not be criminal at common law and by specifying life imprisonment as the maximum sentence to be imposed. Nevertheless, he insisted, the usual principles relating to offenders convicted of the crime of conspiracy are applicable and these include the need to take into account 'any considerations which advert to the content and duration and reality of the conspiracy'.[73] Here, it was submitted, the conspiracy of which Fattal was charged was a conspiracy not to engage in a terrorist act, but to engage in acts in preparation or planning for a terrorist act, and thus the sentence should have appropriately reflected the content, duration and reality of what Fattal actually did, as described above, in relation to that planning rather than, as the 18 years might suggest, on the basis of a conspiracy to commit a terrorist act.

159 Furthermore, while it was accepted that, given the dearth of relevant comparable cases, it is difficult to define a range for the offence through case comparison, it was submitted that the circumstances of this case were so vastly different from those in Lodhi v The Queen[74] or in R v Elomar[75] that a sentence was demanded which more accurately reflected that difference.

160 In Lodhi, the defendant was found guilty by a jury in respect of three of four charges on which he had been indicted. The first charge was collecting documents, namely, two maps for the Australian electricity supply system, which were connected with preparation for a terrorist act, namely, bombing part of the system, knowing the said connection, contrary to s 101.4(1) of the Criminal Code. The second charge was intentionally doing an act in preparation for a terrorist act, namely, seeking information concerning the availability of materials capable of being used for the manufacture of explosives or incendiary devices, contrary to s 101.6(1) of the Criminal Code. The third charge of which the defendant was convicted was of possessing information concerning the ingredients for and the method of manufacture of poisons, explosives, detonators and incendiary devices connected with the preparation for a terrorist act, knowing the said connection, contrary to s 101.5(1) of the Criminal Code. He was acquitted of a fourth charge, namely, making a set of aerial photographs of certain Australian defence establishments.

161 The first and third of the charges carried a maximum penalty of 15 years' imprisonment, and the sentence fixed was 10 years' imprisonment for each. The maximum penalty for the second charge was that of life imprisonment, and the sentence fixed was 20 years' imprisonment. The sentences in respect of the first and third charges were to be served concurrently with that for the second charge and with each other. Whealy J fixed a non-parole period of 15 years.[76]

162 Whealy J found that the plain purpose of the defendant obtaining the maps related to the intention he held at the time to use the maps in connection with a proposal for an enterprise that would involve bombing part of the Australian electricity supply system. He also found that the defendant intended 'that any bombing of the electrical system by the detonation of a homemade explosive or incendiary device would be done to advance the cause of violent jihad and be carried out so as to intimidate the Government of Australia and the Australian public'.[77] At the time of obtaining the maps he had not made a precise determination of the target to be hit. The maps would not have given sufficient information into how an attack could be maintained. They were, rather, 'a starting point for a terrorist related enterprise potentially of some considerable magnitude'.[78]

163 The sentencing judge was not satisfied that the defendant intended that it would be he who would assemble the bomb or carry out the bombing, but the judge was satisfied that the defendant's role was an 'important one'.[79] While he was satisfied beyond reasonable doubt in respect of all three offences that the defendant contemplated that the ultimate act of terror would, at least, cause serious damage to property he was not satisfied that, at this very preliminary stage, the defendant had a definite intention to use an explosive to kill innocent people, but that there was a risk this might occur.[80] Rather, the ultimate explosion was to be 'aimed essentially at property or infrastructure'.[81] It was by reason of these factors that the Crown conceded that the objective seriousness of the first and second charges, although very high, was not in the worst possible category.[82]

164 The defendant sought to diminish the criminal culpability associated with the offending by pointing to 'the absence of precision in the selection of any target or targets; the lack of viability or effectiveness of any proposed plan due to the preliminary nature of the enterprise; the fact that the offender himself was not necessarily to be the person who would carry out any attack, and that no decision had been made as to who else might be involved in any such attack'.[83] Whealy J rejected the proposition that these factors served to reduce the defendant's blameworthiness. He said:

I am unable to agree with these propositions advanced on the offender's behalf. It is true that the actions carried out by the offender may properly be regarded as at a very early stage of any terror related enterprise. The obtaining of the maps from ESAA, for example, would have done little by itself to advance a terrorist plot to bomb part of the electrical supply system. In relation to the enquiry of Deltrex Chemicals, it is also true that a good deal more work and preparation would have been necessary to advance the construction of a physically assembled bomb capable of causing destruction to part of the electrical supply system. But, on the other hand, the legislation under which these offences has been created was specifically set up to intercept and prevent a terrorist act at a very early or preparatory stage, long before it would be likely to culminate in the destruction of property and the death of innocent people. The very purpose of the legislation is to interrupt the preparatory stages leading to the engagement in a terrorist act so as to frustrate its ultimate commission. An evaluation of the criminal culpability involved in any particular offence requires an analysis not only of the act itself, which may be relatively innocuous, but as well an examination of the nature of the terrorist act contemplated, particularly in the light of the intentions or state of mind of the person found to have committed the offence.[84]

165 Thus, while someone convicted of a terrorism offence involving doing acts in preparation for a terrorism act does not stand to be sentenced as though he had committed the terrorism act he was preparing for, nevertheless what was contemplated must inform the nature and gravity of the preparatory act. The sentencing judge thus held that, objectively, the offences were 'very serious indeed' reflecting a 'very high' level of criminality:

In a practical context, it is my finding that the actions of the accused, in relation to each of the offences, displayed an intention on his part that a violent terrorist act would be carried out in Australia. This was intended, in effect, to be a general attack on the community as a whole. It carried the obvious consequence that, if carried out, it would instil terror into members of the public so that they could, never again, feel free from the threat of bombing attacks within Australia. [85]

166 The seriousness of the offences was not reduced by the ineffective nature of the conduct, the general lack of viability and sophistication about the plan and a degree of impracticability about whether the plan could be carried out.[86]

167 The New South Wales Court of Appeal reinforced these observations in dismissing the appeal against sentence from Whealy J.[87] It held that Whealy J's assessment of the objective seriousness of the offences was not flawed and the sentence imposed of 20 years in respect of the offence of intentionally doing an act in preparation of a terrorist act was not manifestly excessive. Spigelman CJ observed:

The sentence imposed is a substantial one, particularly in view of the fact that there was no actual injury to persons or property. Nevertheless ... the provisions creating the offence are directed to preparatory acts and the seriousness with which Parliament regards such acts is manifest in the maximum penalty. By the extended range of conduct which is subject to criminal sanction, going well beyond conduct hitherto generally regarded as criminal, and by the maximum penalties provided, the Parliament has indicated that, in contemporary circumstances, the threat of terrorist activity, requires condign punishment.[88]

168 Price J also emphasised the preparatory nature of the offences:

The present offences ... are not crimes of attempt. Sections 101.4, 101.5 and 101.6 of the Criminal Code (Cth) extend criminal liability to acts of preparation. ... These are anticipatory offences which enable intervention by law enforcement agencies to prevent a terrorist act at a much earlier time than would be the case if they were required to wait for the commission of the planned offence or for an unsuccessful attempt to commit it. ... It does not follow that as long as the preparatory acts relied upon to constitute the offences are in their infancy, criminal culpability must necessarily be low. The main focus of the assessment of objective seriousness must be the offender's conduct and the offender's intention at the time the crime was committed.[89]

169 Spigelman CJ considered that in this context the principles of specific and general deterrence are to be given less weight in recognition that the force of ideological or religious motivation means that deterrence is unlikely to work.[90] Furthermore, with respect to those offences under the Criminal Code where the conduct must occur with the 'intention of advancing a political, religious or ideological cause',[91] the element of the protection of the community is to be given greater weight than might otherwise be appropriate.[92] This is because:

[w]ith respect to the crime of preparation for terrorist acts the Court is not simply concerned with future criminal conduct of a recidivist character. It is concerned with the possibility of perfection of the very crime for the preparation of which the offender has been found guilty.

Accordingly, the issue is not merely one of punishing an offender for something s/he may do in the future. It is the recognition that the protection of society requires the offender to be prevented from perpetrating the offences which s/he was preparing to commit. Giving the element of protection of society substantial weight, particularly in a context where personal deterrence and rehabilitation are, given the nature of the offence and the findings of fact, entitled to little weight, is consistent with the principle of proportionately laid down in Veen (No 2).[93]

170 In Elomar[94] the five defendants were convicted of the offence of conspiracy to do acts in preparation for a terrorist act, contrary to s 16A of the Crimes Act 1914 (Cth), an offence carrying a maximum of life imprisonment. Their activities included ordering or collecting ammunition, laboratory equipment, and chemicals. It also included possession of instructional material on the manufacture of explosives and detonators, recipes for explosives made from fertilizer and mercuric fulminate, material focusing on sabotage, kidnappings, counter-surveillance and assassination, and Islamist extremist material, including material glorifying the 9/11 hijackers and videos showing the execution of hostages. The jury was satisfied that the action or threat proposed would carry the intention of advancing the cause of violent jihad. However, no target had been selected and the precise nature of the terrorist act or who would carry it out had not been decided upon.[95]

171 The sentencing judge (Whealy J) concluded that the terrorist act for which the preparation was undertaken would involve action that, at least, was intended to cause serious damage to property and would, at the very least, create a very serious risk to health and safety of members of the public. He could not be satisfied beyond reasonable doubt that any of the offenders intended directly to kill or take human life, but he found it 'clear beyond argument that the fanaticism and extremist position taken by each offender countenanced the possibility of loss of life, if that were to occur'.[96] The prosecution did not seek life imprisonment because it accepted that the evidence could not support a finding beyond reasonable doubt that the intention behind the conspiracy involved a deliberate and direct plan to kill people.[97]

172 The sentencing judge considered the conspiracy 'a very serious offence',[98] an offence of the most serious kind falling only marginally short of the most serious case,[99] and involving significantly higher criminality than that in Lodhi.[100] The conspiracy was relatively well advanced and its outcome had a clear and logical inevitability such that the outcome could not be described as remote.[101] This was despite the somewhat amateurish nature of the plan. He said:

The criminal enterprise was carried out in a manner which reflected considerable pre-mediation, determination and commitment. It is true that in some respects the attempts to obtain materials were sometimes amateurish and often lacking in cleverness. On occasions, they were inept and clumsy. Those factors did not make the conspiracy any the less dangerous.[102]

173 He acknowledged that the relevant principles guiding the exercise of the sentencing discretion in relation to serious terrorism offences were punishment, deterrence, denunciation and protection of the community. He identified the purpose of criminalising early preparatory conduct as the need to ensure the community is protected by incapacitating the offenders and thwarting their plans. He said:

The broad purpose of the creation of offences of the kind involved in the present sentencing exercises is to prevent the emergence of circumstances which may render more likely the carrying out of a serious terrorist act. Obviously enough, it is also to punish those who contemplate action of the prohibited kind. Importantly, it is to denounce their activities and to incapacitate so that the community will be protected from the horrific consequences contemplated by their mindset and their actions. The legislation is designed to bite early, long before the preparatory acts mature into circumstances of deadly or dangerous consequence for the community. The anti-terrorist legislation, relevantly for the present matter, is concerned with actions even where the terrorist act contemplated or threatened by an accused person has not come to fruition or fulfilment. Indeed, the legislation caters for prohibited activities connected with terrorism even where no target has been selected, or where no final decision has been made as to who will carry out the ultimate act of terrorism. The maximum penalty of life imprisonment testifies to the seriousness with which the present offence is to be regarded.[103]

174 The defendants were judged to have poor prospects of rehabilitation, given the absence of remorse and the lack of any withdrawal from their extremist views.[104]

175 The most senior of the offenders, Elomar, who clearly played a central role in the furtherance of the conspiracy, was sentenced to 28 years' imprisonment; Khaled Cheiko, was sentenced to 27 years' imprisonment; Hasan was sentenced to 26 years' imprisonment; Moustafa Cheiko was sentenced to 26 years' imprisonment; and Jamal was sentenced to 23 years' imprisonment.[105] The judge found that there was little to distinguish between the criminality of any of the specific offenders,[106] as all were fully committed to the outcome of the enterprise and driven to it by their extremist religious convictions.[107] As he said:

[T]here is little utility in trying to establish with absolute precision a gradated hierarchy when the criminal liability of each man is at such a high level. That is because the level of criminality of the conspiracy itself to which each man was a willing adherent is, as I have said, not much less serious than the worst-case situation. [108]

176 In R v Touma[109] the defendant, on a plea of guilty, was sentenced to 14 years' imprisonment on two counts of doing an act in preparation for a terrorist act, in contravention of s 101.6(1) of the Criminal Code, and 8 years' imprisonment on two counts of knowingly possessing a thing connected with preparation for a terrorist act, contrary to s 101.4(1) of the Criminal Code, the sentences on Counts 2, 3 and 4 to be served concurrently with the sentence on Count 1 and on each other. The guilty plea was held to be a cautious indicator that the defendant was moving away from his past extremism.[110]

177 In Benbrika v The Queen[111] the defendants were convicted of multiple offences, including intentionally being members of a terrorist organisation, intentionally providing resources to a terrorist organisation and attempting intentionally to make funds available to a terrorist organisation. In addition, one of the defendants, Abdul Nacer Benbrika, was convicted of the offence of intentionally directing activities of a terrorist organisation, knowing that it was a terrorist organisation, contrary to s 102.2 of the Criminal Code. The total effective sentences initially imposed ranged from six years, where the defendant was convicted of the membership offence alone, to 15 years for Benbrika. The sentences imposed for the membership offence ranged from six to seven years but these were held to be excessive on appeal and were reduced to between four and five years.[112] The total effective sentence of 15 years imposed on Benbrika was upheld on appeal on the ground that although the organisation never got to the point of committing a terrorist act before it was shut down, a terrorist act would surely have been committed had it not been shut down and Benbrika was pivotal as to when and what that act would be.[113]

178 It is to be remembered that consistency in sentencing federal offenders is achieved by 'the application of the relevant legal principles, not some numerical or mathematical equivalence'.[114] Nevertheless, the preceding discussion indicates that the amateurish level at which the conspiracy in the present case was conducted, together with the fact that it did not advance to any significant degree, do not diminish significantly Fattal's criminal culpability, nor that of the other applicants.[115] This is because, as was emphasised at first instance and on appeal in Lodhi, the legislation was created to intercept and prevent terrorist acts at a very early or preparatory stage so as to frustrate the commission of a terrorist act.

179 Moreover, the offence of doing an act in preparation for a terrorist act is completed by engaging in the preparatory conduct. The offence does not stand to be completed only when the aim of the conspiracy is achieved, although the moral culpability of the acts done in preparation is to be evaluated by a consideration of the nature of the terrorist act contemplated. Here, the terrorist act contemplated went beyond the intention to cause serious damage to property, as in Lodhi and Elomar; rather, it involved a plan for the intentional killing of innocent persons, the intention being, as her Honour said, 'to kill as many personnel, that could be found on the army base at Holsworthy ... a random shooting of anyone you found on that army base, be it army personnel, civilian, male or female'.[116]

180 As was recognised in Elomar, the fact that the acts engaged in lacked cleverness or were inept and clumsy does not in itself render the conspiracy any less dangerous. Here the conspiracy had developed to a point where the target had been selected, a factor absent from the circumstances in both Lodhi and Elomar. Fattal's inexpert surveillance of the army base was consistent with the grim reality that there was no need to identify any exit from the base for the perpetrators, because the conspiracy involved whoever carried out the plan being killed themselves, as martyrs.[117] Nor was there a need to identify any particular building or office on the base as housing a particular officer because, as mentioned, what the terrorist act contemplated was shooting people at random.

181 While her Honour did not find, in contradistinction to Elomar, that it was inevitable that the terrorist act would be committed, in our view it was open to her to conclude that the offences of which Fattal, and the other applicants were convicted required significant sentences. This was so most especially in the light of the need for the protection of the community and the absence of any remorse or behaviour from the applicants indicating that they had renounced their extremist views. We consider that the sentence fixed by her Honour, eighteen years with a minimum term of thirteen years and six months' imprisonment, were open to her and were not manifestly excessive.

182 We consider that this ground of appeal against sentence must be rejected and that Fattal's application for leave to appeal against sentence should be dismissed.

183 In seeking leave to appeal against sentence, Aweys advanced the following five grounds of appeal:

(1) The learned sentencing judge erred in imposing a sentence of imprisonment that was manifestly excessive, particularly having regard to the content, duration and reality of the conspiracy, what was done in transaction of it, and the role of the applicant.

(2) The learned sentencing judge erred in finding that she could not be satisfied that the applicant had desisted from continuing the conspiracy by the date of his arrest.

(3) The learned sentencing judge erred in failing to give weight to the conduct of the accused at trial.

(4) The learned sentencing judge erred in finding that the applicant's prospects of rehabilitation were 'exceedingly slim'.

(5) The learned sentencing judge erred in applying the 'three-quarters rule' when determining the non-parole period.

184 We have already rejected this ground of appeal and its reliance on the content, duration, and reality of the conspiracy, especially with respect to the unskilful and inexpert nature of the conduct engaged in and the very preliminary stage which the conspiracy had reached before it was interrupted.

185 We discussed above the nature of the overt acts relied upon by the Crown with respect to Aweys. It is clear that the seeking of the fatwa was a significant matter in the preparation for the terrorist act, at least as significant as the surveillance of the army base. In our view, her Honour was correct to conclude that '[n]o one emerges particularly as a leader or as a follower'.[118] Rather, similarly to Elomar, the dynamic between the co-offenders is one where there is little to distinguish between the criminality of any of the specific offenders, as all were driven to the plan by their extremist religious convictions and committed to that plan.[119] Our rejection of Grounds 1 and 2 of Awey's application for leave to appeal against conviction means that it was open for her Honour to sentence on the basis that each of the applicants acted in pursuance of the alleged agreement and, therefore, that each of them did so with the intention of carrying the agreement into effect.

187 Aweys submitted that the determination by the sentencing judge that she found 'neither that you were going to continue nor that you were going to desist, merely that on 3 August 2009 you were arrested'[120] was against the weight of the evidence. Aweys relied on the conversation between Abdirahman and him on 10 July 2009, which, he contended, made it clear that he accepted the answer that the attack on the army base was haram. It was submitted that he took no further steps in advancing the conspiracy and the overt act relied upon on 20 July 2009, namely, the discussion between Ahmed and him that Khayre had announced to others while he was overseas he obtained the answer that the attack was halal, contrary to Aweys' belief, should not be considered as a step in furthering the conspiracy because in that conversation he accuses Khayre of lying.

188 It is apparent that there is an overlap between this ground and Grounds 1 and 2 of Aweys' application for leave to appeal against conviction, which we have rejected. In this context what is urged is that Aweys, having received the haram answer, regardless of whether that was what he sought, desisted from furthering the conspiracy from that date.

189 The Crown contended that the determination of the sentencing judge under challenge must be read in its entirety, which included the findings that:

• the answer to the fatwa question was 'no' (haram);

• no further steps were taken by Aweys subsequent to that answer, up to the date of his arrest on 3 August 2009;

• this fact did not necessarily mean that no further steps would ever be taken;

• ultimately, she could not find either way, as to whether Aweys would take further steps or desist.

190 The Crown contended that for her Honour to have found otherwise would amount to speculation.

191 We agree. The evidence from the date on which the haram answer was given did not establish, as a positive inference, that Aweys would perform no further steps to advance the conspiracy. There was only a short period of time between, on the one hand, the conversations of 10 July and 20 July and, on the other hand, the arrest of 3 August and, in the context in which Aweys had expressed both the belief that violence was justified to advance Islam and a fervid antipathy towards Australia's institutions and kuffar Australians, we consider that it was open to her Honour not to be satisfied, on the balance of probabilities, that these conversations demonstrate a desistance from the conspiracy.

193 During the course of the plea, counsel for Aweys relied on the observations of Bongiorno J in sentencing Benbrika to the effect that consideration should be given in sentencing for the co-operation the offenders had demonstrated with the Crown

193 during the course of the trial.[121] It was submitted that Aweys had conducted himself both appropriately and respectfully during the trial with many admissions having been made which had obviated the need for evidence to be called that in turn shortened the trial process. It was also submitted that his behaviour in court was in stark contrast to that of Fattal. Her Honour accepted that Aweys had acted co-operatively during the trial but determined that she would give this no weight in sentencing and the issue was not addressed in her sentencing remarks. Aweys argued that this was an error and that his co-operation should have resulted in a moderation of sentence.

194 However, in our view, her Honour was entitled not to consider Aweys' respectful conduct in court as a factor in mitigation of sentence. She was not bound to follow the practice of Bongiorno J. It was open to her Honour to give the issue no weight. Just as she was not obliged to take into account, as an aggravating factor, the disruption caused by Fattal during the trial, she was also not obliged to take into account Aweys' co-operation during the trial as a mitigating factor.

195 Furthermore, we consider that the application for leave to appeal against sentence should be rejected on this ground because, pursuant to s 280(2) of the Criminal Procedure Act 2009 (Vic), there is no reasonable prospect that this Court would impose a less severe sentence.

197 Aweys conceded that the fact that he had pleaded not guilty and thus contested the charges at trial, and had not shown any remorse, were factors militating against his prospects of rehabilitation. However, he relied on largely unchallenged character evidence to support his submission that he had many personal attributes that tended towards him having good prospects of rehabilitation, especially his supportive family; his good work history; and his completion of various courses while in custody. These included courses for which he achieved a Certificate of Attainment in Work Safety in the Construction Industry; Certificate II in Cleaning Operations; Certificate II in Hospitality (kitchen operations); Certificate in National First Aid Units of Competency; Certificate II in Horticulture; Certificate II in General Education for Adults and Certificate I in Work Education.

198 It was submitted, the counselling and religious education provided by Mr Weli to Aweys, and his response to it, was of particular significance when assessing his long-term prospects of rehabilitation. Mr Weli, who gave evidence on the plea, is the head Imam at the city mosque in West Melbourne and works as an Islamic chaplain at various prisons in Victoria. Mr Weli started seeing Aweys as part of his normal chaplaincy and found him to become more mature and family-focused in his approach over time. He considered that, initially, Aweys did not have a very deep knowledge of the Islamic faith but that had changed over time and he had become aware of a lot of alternative opinions on matters, having more time to read and ask questions. Mr Weli is also part of a program that offers mentoring and Islamic education and social support for Muslim prisoners, particularly those who may be vulnerable to wrong interpretations of the Islamic religion. The program starts around six months or so before release. Aweys has not been part of that program but Mr Weli has developed a strong relationship with him and is eager to continue mentoring and supporting him before and after his release. It was submitted that her Honour's finding that Aweys' prospects of rehabilitation were 'exceedingly slim' was against the evidence and that her Honour placed too much weight on the absence of any formal renunciation by Aweys of his extremist religious views.

199 In response, the Crown submitted that her Honour took into account a range of factors in favour of Aweys' prospects of rehabilitation. These included his good working history; his supportive family; his participation in courses in prison and the counselling and religious education provided by Mr Weli.[122] Counterbalancing those factors were Aweys' lack of insight into his offending; his prior criminal history (although, as her Honour observed, there had been no further occurrence of any incident of violence since 2005); the absence of any remorse and his failure to renounce his extremist views. It was submitted that the failure of Aweys to give evidence of a matter in mitigation, when the onus rested on him, namely, of any change of heart or abandonment of the radicalism underlying the offence was a factor which supported her Honour's evaluation of the prospects of Aweys' rehabilitation as 'exceedingly slim', especially when the matter, if it existed, rested within his knowledge.[123]

200 In our view, given that there was no evidence that Aweys had abandoned his extremist views, it was open to her Honour to arrive at the view which she did. In this respect, it was also open to her Honour to treat the evidence of Mr Weli as going only so far as indicating a willingness on behalf of Aweys to engage in discussion and no form of recantation[124] without which it would be difficult to infer that the prospects of rehabilitation were more than slim, given the moral gravity of the incident that was being planned and given that, with respect to the application for leave to appeal against sentence, it must be assumed that Aweys was guilty of the offences with which he was charged, on the basis of the jury verdict. Her Honour's emphasis on the lack of evidence of recantation served to fortify the view that she had invited such evidence by way of a 'last chance', given the severity of the maximum sentence fixed for the offence.

202 Section 19AG of the Crimes Act provides that: (1) if a person is convicted of a 'terrorism offence' and (2) the court imposes a sentence for the offence, a Court must set a non-parole period of at least 'three-quarters' of the head sentence (the 'three quarters rule').[125] Her Honour applied the three-quarters rule.[126]

203 Section 3 of the Crimes Act defines a 'terrorism offence' as:

(a) an offence against Subdivision A of Division 72 of the Criminal Code; or

(b) an offence against Part 5.3 of the Criminal Code.

204 The offence with which Aweys and the other applicants were charged was the offence of conspiracy to do acts in preparation for, or planning, a terrorist act contrary to s 11.5(1) and s 101.6(1) of the Criminal Code. Section 11.5(1) creates the discrete statutory offence of conspiracy and provides that the offence 'is punishable as if the offence to which the conspiracy relates had been committed'.

205 The offence of conspiracy is not found under Division 72 (Explosives and Lethal Devices) nor Part 5.3 (Terrorism) of the Criminal Code.

206 The term 'convicted' is not defined by the Crimes Act.[127]

207 Aweys submitted there had been neither a jury finding nor a final judicial determination that he had committed a 'terrorism offence' as defined under s 3 of the Crimes Act. He submitted that even if s 11.5(1) of the Criminal Code is interpreted as deeming him to be punished for having committed a terrorism offence under Part 5.3 of the Criminal Code, he has not been 'convicted' of that offence. The two conditions precedent under s 19AG(1) of the Crimes Act must have different meanings or the latter would be otiose. He contended that the word 'convicted' is ambiguous and in the face of ambiguity, an interpretation that favours the liberty of the subject should be preferred.

208 The difficulty Aweys faces is that there is a response which wholly defeats his submission based on the construction of s 19AG. Section 11.6 of the Criminal Code provides that where a Commonwealth law refers to an offence it is to be taken to refer also to offences involving attempt, incitement or conspiracy to commit that offence. Thus, when s 101.6(1) creates the criminal offence of doing any act in preparation for, or planning, a terrorist act it is to be taken to include also the criminal offence of conspiring to do any act in preparation, or planning for, a terrorist act, by reason of 11.6 of the Criminal Code.

(1) A reference in a law of the Commonwealth to an offence against a law of the Commonwealth (including this Code) includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to such an offence.

(2) A reference in a law of the Commonwealth (including this Code) to a particular offence includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that particular offence.

210 There is nothing in s 101.6(1) of the Criminal Code which is expressly or impliedly to the contrary.[128]

211 The effect of s 11.6 to expand criminal responsibility was explained by Redlich JA in Tan v The Queen[129] where he said:

Section 11.6 of the Code falls within Pt 2.4 entitled 'Extensions of criminal responsibility' and is to be interpreted in a manner which will facilitate that objective in relation to Commonwealth offences including those in Div 400. Offences against laws of the Commonwealth are those offences created by, or under the authority of the Criminal Code or any other Act.

The Explanatory Memorandum to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999 (Cth), referred to it in these terms:

Items 9, 10 and 11 of Schedule 1 - amendments to section 11.6

Section 11.6 of the Criminal Code is an interpretative provision which provides that references to offences against an Act also include relevant extensions of criminal responsibility such as attempt, complicity and conspiracy. This simplifies the drafting of criminal statutes. The proposed amendments in items 9 and 10 make it clear this rule extends to not only Acts but other laws of the Commonwealth that create offences (for example, regulations). Proposed new subsection 11.6(4) which would be inserted by item 11 preserves references in existing laws to extensions of criminal responsibility.

The provision is referred to in the Commonwealth Criminal Code - Guide for Practitioners, as one essentially of drafting convenience that ensures that references in Commonwealth laws to Commonwealth offences includes references to crimes such as conspiracy, attempts and incitement. [130]

212 It follows that the reference in s 3 of the Crimes Act to an offence against Part 5.3 of the Criminal Code, which includes the offence of doing an act in preparation for, or planning a terrorist act, contrary to s 101.6(1) of the Criminal Code, must be taken to include the offence of conspiring to do an act in preparation for, or planning a terrorist act. So too s 19AG, when referring to 'a terrorism offence', must be interpreted to include a conspiracy to perform a terrorism offence. On this construction, Aweys was both convicted of a terrorism offence and sentenced in respect of that offence. The three quarters rule was thus properly engaged.

214 It follows that we consider that Aweys' application for leave to appeal against sentence should be dismissed.

215 El Sayed relied on two grounds of appeal in his application for leave to appeal against sentence:

(1) The learned sentencing judge erred in that she failed to take into account the fact of, and extent of, the applicant's facilitation of the course of justice in the efficient conduct of the trial and its processes.

(2) The total effective sentence of 18 years is manifestly excessive.

Ground 1: Facilitation of the course of trial

216 El Sayed submitted that he had contributed to the efficient conduct of the trial and this should have been taken into account in mitigation. In particular, he pointed to certain admissions he made which shortened the trial and the efforts he made to calm Fattal during the trial. We have already dealt with this submission under Ground 3 with respect to Aweys and we similarly reject it here.

217 El Sayed adopted the submissions of Fattal and Aweys on the issue of manifest excess. He also emphasised that he was voluntarily taking part in a mentoring program that exposed him to moderate and appropriate views of practising Muslims whilst in custody and had completed various courses while in prison.

218 While we consider that this may arguably diminish the extent to which the principle of specific deterrence might be engaged, it flies in the face of the absence of any renunciation of the views that led El Sayed to contemplate the violence the conspiracy was intended to implement. Moreover, as we have emphasised, in any event, deterrence can play little part in sentencing for the offence of which El Sayed has been convicted, the primary purpose of which must be the protection of the community.

219 We have already dealt in detail with the ground of manifest excess, which we have rejected. The evidence of the overt acts of El Sayed relied upon, especially his facilitation of the pursuit of the fatwa, indicated that the sentencing judge was correct not to identify a hierarchy of offenders within the conspiracy.

221 El Sayed's application for leave to appeal against sentence should be dismissed.

222 The DPP particularised the sole ground of manifest inadequacy upon which he relied in the following way:

In imposing the sentence, the learned sentencing judge:

(a) failed to give sufficient weight to the seriousness of the offence;

(b) gave too much weight to her conclusion that the plan was amateurish together with the fact that this conspiracy did not advance to any significant degree;

(c) failed to give sufficient weight to the principle of general deterrence;

(d) failed, in 'tempering' general deterrence because of ideological or religious motivations of those intended to be deterred, to give sufficient increased weight to the protection of the community;

(e) failed to give sufficient weight to the principle of protection of the community;

(f) failed to give sufficient weight to the principle of specific deterrence; and

(g) gave insufficient weight to the maximum penalty applicable.

223 The DPP accepted, on the authority of DPP v Karazisis[131] that the contention of manifest inadequacy is difficult to make good. As Warren CJ and Maxwell P said:

In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.

The court will be astute to enforce the stringency of this test. As the High Court has emphasized:

The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[132]

224 It was submitted that here the sentence imposed was outside the range reasonably open to the sentencing judge, if proper weight had been given to all the relevant circumstances, in the light of the maximum penalty, the sentences imposed in other cases including in Lodhi and Elomar, and the inherent seriousness of the conspiracy. The offending in this instance was argued to be more serious[133] than the very high level of seriousness of the offending in Elomar and more egregious than that in Lodhi, yet the sentence imposed is less than that imposed in Lodhi. The DPP submitted that her Honour arrived at an inadequate sentence by focussing on the steps taken and giving insufficient weight to the nature of the plan which could have had devastating consequences involving as it did a planned attack on a selected target with the intention of killing as many soldiers and others found there as possible.

225 It was further submitted that her Honour wrongly characterised the plan as 'amateurish', although it was accepted that it was simple and unsophisticated. The DPP emphasised, as we did above, that under s 101.6(1) the preparatory acts constitute the offence and it is those preparatory acts for which the Parliament has fixed the maximum of life imprisonment. He also argued that it was not correct for her Honour to place weight upon the lack of degree of advancement because the legislative intention of Part 5.3 of the Criminal Code is to prevent or disrupt terrorist acts, as was emphasised by Spigelman CJ in Lodhi, as we discussed above.

226 The DPP emphasised that a sentencing court must have full regard to the need for denunciation and general deterrence, in determining the appropriate severity of the sentence in accordance with s 16A(1) of the Crimes Act. He submitted that her Honour: (1) undervalued the importance of general deterrence because terrorist offences are carried out by people committed to martyrdom; and (2) that the sentence imposed failed to reflect adequately the need for specific deterrence in the face of an absence of remorse or recantation of extremist views. He also submitted that her Honour failed to place protection of the community at the forefront of the exercise of her sentencing discretion. Moreover, it was argued that the offending was of the worst class and as such should have attracted the applicable maximum penalty of imprisonment for life. The recognition by her Honour that the offending was of a 'very high level of seriousness'[134] and the plan was 'evil'[135] should have prompted her Honour to fix the maximum and her failure to do so, it was submitted, indicated that she did not have sufficient regard to the maximum.

228 The sentencing judge acknowledged that the maximum penalty for the offence of which the applicants were convicted was life imprisonment.[136] She understood that the Commonwealth Parliament had chosen that maximum to indicate the seriousness of the offending, given that the other type of offences attracting such a maximum were murder, treason, and trafficking and importing in large commercial quantities of drugs. She appreciated that what made the offences unusual was that they attached criminal culpability to conduct which, because of the preparatory and anticipatory nature of the behaviour, would not ordinarily be criminal, and would not even amount to an attempt at common law. In this context she cited precisely those passages of the judgment of Spigelman CJ in Lodhi that the DPP relies upon.

229 Her Honour was well aware of the sentences fixed in Lodhi and Elomar and of the difficulty in comparing cases for the purposes of sentencing. She emphasised repeatedly that here the plan was one in which a target had been chosen and the intention was to kill.[137] She was also conscious that the steps taken towards carrying out that intention did not involve, as it did in Elomar, the purchase of ammunition or gathering of weapons.[138] That her Honour was in no doubt as to the character of the offending is evident from her taking into account, as part of the background to the offending, the support the applicants had for Al Shabbab, which her Honour described as 'a radical and extreme Muslim group based in Somalia'.[139]

230 Her Honour also considered, properly, the consequences that might have followed if the plan had been put into effect.[140] In this respect, while the DPP was correct to emphasise that the sentence imposed must reflect the nature of the offence as preparatory, and thus completed when the acts in preparation have been engaged in, it would be wrong to consider that the offence is punishable as if the terrorist act to which the preparation and planning was directed had been carried out. Although the nature and quality of the terrorist act being planned is clearly relevant to sentencing, it would be a mistake to consider that to be within the range, the sentence must reflect the moral and criminal culpability of the commission of the terrorist act planned.

231 We are not persuaded that her Honour erred in diminishing the weight to be given to general deterrence in a case such as this. As mentioned above, it was recognised by Spigelman CJ in Lodhi that people who are prepared to commit these types of offences, which may involve suicide as a form of martyrdom, are unlikely to be deterred by harsh sentences of imprisonment.[141] Her Honour also recognised that where general deterrence is reduced, the protection of the community is very significant,[142] as is specific deterrence.[143]

232 In our view, the sentences imposed were severe but quite properly so. We consider that the maximum penalty ought be reserved for the worst class of case. In our view, the offending here, regrettably, was not of the worst class. One can readily envisage circumstances in which the plan, although never carried out, is much more heinous.

233 We consider that it was reasonably open for her Honour to arrive at the sentences she did. We consider that the sentences imposed fell within the range.

234 The Crown appeal against sentence should be dismissed.

[1] Sentencing remarks, R v Fattal & Ors [2011] VSC 681, [25].

[4] Ibid [21], [90]-[91]. The sentencing judge referred to the schedule of overt acts of FATTAL, specifically CCTV footage of FATTAL attending the entrance of the army base, as well as records of listening devices. See Exhibit 95.

[5] Ibid [90] and [92]. The sentencing judge referred to the schedule of overt acts of AWEYS, specifically intercepts of telephone conversations recorded. See Exhibit 96.

[6] Ibid [90] and [92]. The sentencing judge referred to the schedule of overt acts of EL SAYED, specifically records of calls and listening devices. See Exhibit 97.

[7] Although he was represented by senior counsel for the purposes of his application for leave to appeal against sentence.

[9] [2007] HCA 30; (2007) 230 CLR 559, 596 [113] (Hayne J).

[11] Mackenzie v The Queen (1996) 190 CLR 348, 366-368.

[12] Which is set out above under the heading of Ground 2.

[13] Even if, as sometimes appears, the obligation is not conceived of by all Australian intermediate appellate courts as being entirely mutual.

[14] [1911] AC 47, 68, in arguendo; and see JD Heydon, Cross on Evidence, Australian Edition, [1140]; Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 631 (McHugh J); cf Chand v R [2011] NSWCCA 53, [81]-[85] (McClelland CJCL); R v Georgiev [2001] VSCA 18; (2001) 119 A Crim R 363, 365 [6] (Brooking and Phillips JJA).

[16] See and compare Cooper v R [2013] VSCA 153, [8] (Priest JA).

[17] Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, 242-3 (Dixon CJ); R v Hillier [2007] HCA 13; (2007) 228 CLR 618, 637 [47] (Gaudron, Hayne and Crennan JJ).

[18] R v Koeleman [2000] VSCA 141; (2000) 2 VR 20, 29 [27] (Tadgell JA).

[19] See De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85, 93 (Gaudron, McHugh and Hayne JJ); R v Cavkic [2005] VSCA 182; (2005) 155 A Crim R 275, 289 [2].

[20] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 584-5 (Dawson J).

[21] Cf Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 581 (Dawson J), 575 (Mason CJ), 593 (Mc Hugh J).

[22] [1990] HCA 56; (1990) 170 CLR 573, 584-5 (Dawson J).

[23] R v Wright [1999] VSCA 145; [1999] 3 VR 355, [2] (Phillips and Charles JJA).

[24] See and compare R v GAC [2007] NSWCCA 315; (2007) 178 A Crim R 408, [87]-[89]; CW v R [2010] VSCA 288, [29]-[30].

[25] R v Russo [2004] VSCA 206; (2004) 11 VR 1, 3 [5]-[6] (Winneke P); cf R v Cuenco [2007] VSCA 41; (2007) 16 VR 118, 124 [19]-21].

[26] Zoneff v The Queen (2000) 200 CLR 234, 245 [23].

[27] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 210-211.

[28] Because it was referred to by the defence: R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, 52 [86].

[29] R v Finnan [2005] VSCA 151, [18] (Vincent JA); R v Spero [2006] VSCA 58; (2006) 13 VR 225, 231 [17] (Redlich JA).

[30] Other evidence showed that this was Walid.

[33] Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 535 (Gibbs CJ, Mason J); The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618, 638 [48] (Gummow, Hayne and Crennan JJ).

[34] [1961] HCA 22; (1961) 104 CLR 1, 7.

[35] [1988] HCA 39; (1988) 165 CLR 87; and see Benbrika v R (2010) 29 VR 593, 612 [53]-[63].

[39] R v Alexander and McKenzie [2002] VSCA 183; (2002) 6 VR 53, 65 [29] (Winneke P).

[40] [1982] HCA 32; (1982) 148 CLR 668, 678, citing R v Novac (1976) 65 Cr App R 107, 118 (Lord Bridge).

[41] KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, 235 (McHugh J), 272-3 [38] (Hayne J).

[42] R v Demirok [1976] VicRp 19; [1976] VR 244, 254.

[43] See and compare, Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, 247-249 [26]-[29]; Baini v R (2011) 33 VR 252, 268 [70] (Ashley JA) (rev'd on appeal, but not on this point, Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469).

[44] R v Stephenson [1976] VicRp 34; [1976] VR 376, 380-1.

[45] Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 321-2 [81]; Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, 653-4 [6].

[46] R v Taylor [2003] NSWCCA 194, [127]-[130] (Bell J).

[47] See the analysis of 'connected with' in Benbrika v R (2010) 29 VR 593, 661 [319], in the different context of s 101.4 of the Criminal Code; cf. R v Khazal (2012) 246 CLR 601, 613 [31] (French CJ).

[48] Crofter Hand Woven Harris Tweed Co v Veitch [1941] UKHL 2; [1942] AC 435, 445 (Viscount Simon LC), 473 (Lord Wright); Glanville Williams, Criminal Law, the General Part, 2nd Ed, 55 [21]. It is, however, unnecessary to decide that point for present purposes and we do not purport to decide it.

[49] R v Kane [2001] VSCA 153; (2001) 3 VR 542, 565-573; R v Doan [2001] VSCA 142; (2001) 3 VR 349, 45 [26]-[27]; R v Saad [2005] VSCA 249; (2005) 156 A Crim R 533, 563 [100].

[50] Nguyen v The Queen [2010] HCA 38; (2010) 242 CLR 491, 505 [50].

[51] James v R [2013] VSCA 55, [13] (Maxwell P) and the cases there cited.

[52] The leading decisions are analysed in the judgment of Redlich JA in Pantazis v R [2012] VSCA 160, [27]-[57]; affirmed on appeal_, Elias v The Queen_ [2013] HCA 31.

[53] Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth [1943] HCA 12; (1943) 67 CLR 116, 131 (Latham CJ); 157 (McTiernan J).

[54] [1997] HCA 27; (1997) 190 CLR 1, 160.

[55] Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth [1943] HCA 12; (1943) 67 CLR 116.

[56] Ibid 157 (McTiernan J); see also Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 166 (Gummow J) and the cases there cited.

[57] [1943] HCA 12; (1943) 67 CLR 116, 155.

[58] Ibid 127-128 (Latham C J, citing Cox v New Hampshire [1941] USSC 78; (1941) 312 US 569, 574).

[60] Section 1(1) of the Charter of Human Rights and Responsibilities provides: 'This Act may be referred to as the Charter of Human Rights and Responsibilities and is so referred to in this Act'. The convention is to refer to an Act by its short title (as expressed in the Charter by s 1(1)) and there is thus no need to refer to the Charter as the 'Charter of Human Rights and Responsibilities Act': see Interpretation of Legislation Act, s 10(1)(e); Deming No 456 Pty Ltd v Brisbane United Development Corporation Pty Ltd [1983] HCA 44; (1983) 155 CLR 129, 162 (Wilson J).

[61] [2000] HCA 63; (2000) 205 CLR 337, 344-5.

[62] (1994) 75 A Crim R 515, 520.

[63] [2012] NSWCA 65.

[73] R v Kane [1975] VicRp 64; [1975] VR 658, 661 (Gowans J, with whom McInerney and Nelson JJ agreed), as approved in Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1.

[74] [2007] NSWCCA 360; (2007) 179 A Crim R 470 ('Lodhi').

[75] [2010] NSWSC 10; (2010) 264 ALR 759 ('Elomar').

[76] R v Lodhi [2006] NSWSC 691; (2006) 199 FLR 364, 383-4 [109]-[112].

[87] Lodhi [2007] NSWCCA 360; (2007) 179 A Crim R 470 (Spigelman CJ, Barr and Price JJ). The Court also dismissed the appeal against conviction.

[89] Ibid 531 [229] (original emphasis).

[92] Ibid 490-1 [88]. See also [96]-[110].

[93] Ibid 493-4 [108] (Spigelman CJ). See also Barr J, agreeing with the remarks of the Chief Justice, 527-8 [211]-[214].

[94] [2010] NSWSC 10; (2010) 264 ALR 759.

[104] Ibid 782 [93] (Elomar); 786 [106] (Khaled Cheiko); 792 [130] (Hasan); 796 [146] (Moustafa Cheiko), 804 [178] (Jamal).

[105] Ibid 803 [183], [184], [185], [186], [187] respectively.

[109] [2008] NSWSC 1475.

[111] (2010) 29 VR 593.

[112] There were other adjustments made on re-sentencing.

[114] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 527 [18].

[115] Nor do we consider that the sentencing judge considered these factors significantly diminished the applicants' criminal culpability. See below where we consider the DPP's appeal against sentence.

[119] See Elomar [2010] NSWSC 10; (2010) 264 ALR 759, 781-2 [90], 790 [125].

[121] R v Benbrika [2009] VSC 21; (2009) 222 FLR 433, 445 [52]. Whealy J in Elomar [2010] NSWSC 10; (2010) 264 ALR 759, 782 [92] also took conduct contributing to the efficiency of the trial into account in fixing a sentence.

[122] Sentencing remarks, [58], [61], [62], [64].

[123] See Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217; R v Neilan [1992] VicRp 5; [1992] 1 VR 57.

[124] In this respect it should be noted that the extract of Mr Weli's evidence quoted by her Honour at [61], derived from the plea transcript at p 73 (6 May 2011), to the effect that even if an action is Islamically permissible it may not be the best action to take, is not a statement made by Aweys but a statement made by another individual who had already been through the program which Aweys had not yet started.

[125] See s 19AG(1)(b) and (2) of the Crimes Act. Section 19AG also has operation in relation to offences against s 24AA and an offence against Division 80 or 91 of the Criminal Code_._

[127] That is, it is not defined with respect to Part 1B which includes s 19AG and relates to sentencing of federal offenders. It is defined under s 85ZM with respect to pardons, spent convictions and so on.

[128] Section 11.6(3) of the Criminal Code.

[129] (2011) 216 A Crim R 535.

[130] Ibid 549 [40]-[42] (Neave JA and Lasry AJA agreeing).

[131] [2010] VSCA 350; (2010) 31 VR 634.

[132] Ibid 662-3 [127]-[128] (citations omitted).

[133] The submission was made under the general rubric of the need to take into account 'the nature and circumstances of the offence', under s 16A(2) of the Crimes Act.

[139] Ibid [8]. At the hearing of the applications for leave, counsel for El Sayed disputed whether Al Shabbab was a terrorist organisation at the time of the offending by the applicants. This was clarified as disputing whether Al Shabbab was a proscribed terrorist organisation within the list of such proscribed organisations by the Australian government at the relevant time. The Crown acknowledged that it was not. However, ultimately this was irrelevant because the applicants were not charged with being members of a terrorist organisation but conspiring to do acts in preparation for, or planning, a terrorist act.

[141] Lodhi [2007] NSWCCA 360; (2007) 179 A Crim R 470, 490 [87].

[142] Sentencing remarks, [83], [97], [99].