Khayat v R [2025] NSWCCA 151 | Case summary

Medium Neutral Citation: Khayat v R [2025] NSWCCA 151

Hearing dates: 5 May 2025

Date of orders: 26 September 2025

Decision date: 26 September 2025

Before: Harrison CJ at CL at [1]
Wright J at [3]
Huggett J at [148]

Decision: (1) Grant leave under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Criminal Appeal Rules) to make the application for leave to appeal in respect of ground 1 out of time.
(2) Grant leave to appeal under r 4.15 of the Criminal Appeal Rules in respect of ground 1.
(3) Refuse leave under r 3.5(5) of the Criminal Appeal Rules to make the application for leave to appeal in respect of ground 2 out of time.
(4) Refuse leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) in respect of ground 2.
(5) Dismiss the appeal.

Catchwords: CRIME – appeals – appeals against conviction – extended unanimity directions – conspiracy to commit an act in preparation for, or planning, a terrorist act or acts - whether an extended unanimity direction required as to terrorist act or acts prepared for or planned – preparing for, or planning, a specific terrorist act not an “essential ingredient” of offence of conspiracy to commit an act in preparation for, or planning, a terrorist act or acts – where only issue at trial was whether the applicant was a party to a conspiracy to do acts in preparation for, or planning, a terrorist act or acts which was admitted to exist between other parties – extended unanimity direction as to a particular terrorist act prepared for, or planned, not required in the circumstances
CRIME – appeals – appeals against conviction – lies as consciousness of guilt – whether asserted lies were material and explicable only on the basis that the truth would implicate the applicant – whether jury would employ circular reasoning in their consideration of the asserted lies – no risk of the jury employing circular reasoning – in light of other evidence it was open to the jury to conclude the lies were material and explicable only on the basis that the truth would implicate the applicant

Legislation Cited: Commonwealth Constitution, s 80
Criminal Appeal Act 1912 (NSW), s 5
Criminal Code (Cth), ss 3.1, 4.1, 5.6, 5.11, 11.5, 100.1, 101.1, 101.6, 102.2
Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.5, 4.15

Cases Cited: Abbas v The Queen [2022] VSCA 39; 297 A Crim R 1
AKB v The King [2024] NSWCCA 169
Cheatle v The Queen (1977) 177 CLR 541; [1993] HCA 44
Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30
Director of Public Prosecutions (Cth) v Kola (2024) 279 CLR 104; [2024] HCA 14
Edwards v The Queen (1993) 178 CLR 193 at 209 and 210; [1993] HCA 63
Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
Lodhi v R [2006] NSWCCA 121; 199 FLR 303
Magnus v R (2013) 41 VR 612; [2013] VSCA 163
R (Cth) v Alqudsi (No 7) [2023] NSWSC 354
R v B (2008) 76 NSWLR 533; [2008] NSWCCA 85
R v Khaled Khayat; R v Mahmoud Khayat (No 14) [2019] NSWSC 1817
R v Lane [2011] NSWCCA 157; 221 A Crim R 309
R v LK (2010) 241 CLR 177; [2010] HCA 17
R v Lucas [2023] NSWSC 1195; 382 FLR 199
R v Mead [2002] 1 NZLR 594
R v More (1988) 86 Cr App R 234
R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299
R v Zheng (1995) 83 A Crim R 572
R v Hancock, Warner and Michael [1996] 2 Cr.App.R. 554
Ribbon v The Queen (2019) 134 SASR 328; [2019] SASCFC 130

Category: Principal judgment

Parties: Mahmoud Khayat (Applicant)
The King (Respondent)

Representation: Counsel:
S Odgers SC (Applicant)
M England SC / E McGinness (Respondent)
Solicitors:
Koa Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2017/00236835

Publication restriction: There are non-publications orders which were made by Adamson J on 11 and 22 March 2019 relating to aspects of the evidence. As a result of amendments to those orders made on 15 October 2020, the orders made on 11 and 22 March 2019 apply throughout the Commonwealth of Australia for a period of 25 years and 50 years respectively from 15 October 2020.

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was convicted in the New South Wales Supreme Court of one count of conspiring to do acts in preparation for, or planning, a terrorist act or acts contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth). He sought leave to appeal against his conviction out of time pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) and sought to rely on two grounds of appeal at hearing:

1. The trial judge erred in failing to give an extended unanimity direction; and

2. The trial judge erred in allowing evidence of alleged lies of the appellant to be used to show consciousness of guilt.

As to ground 1, the applicant submitted that because the Crown particularised two distinct terrorist acts, referred to as the “bomb plot” and the “gas plot”, an extended unanimity direction was required to ensure the jury was unanimous in their pathway to guilt for the offence charged on the indictment.

As to ground 2, the applicant submitted that the trial judge erred in allowing alleged lies of the applicant to be used as consciousness of guilt because none of the alleged lies were material or explicable only on the basis that the truth would implicate the accused in the offence in which he was charged.

THE COURT HELD (Wright J with Harrison CJ at CL and Huggett J agreeing) granting leave to appeal out of time in relation to ground 1 and refusing leave to appeal in relation to ground 2 and dismissing the appeal on ground 1:

1. An extended unanimity direction was not required in the circumstances because:

(a) Neither particularised terrorist act was an “essential ingredient” of the offence of conspiracy to commit an act in preparation for, or planning, a terrorist act or acts, given the nature of the conspiracy and the terms of s 101.6(2)(b) and (c) of the Criminal Code (Cth). Consequently, the jury was not required to be unanimous as to any specific terrorist act or acts which was the subject of the preparation or planning in order to be satisfied beyond reasonable doubt of the applicant’s guilt of the offence charged: [98]-[100]; and

(b) The existence of a conspiracy between other parties to commit an act in preparation for, or planning, a terrorist act or acts was not in issue at trial. The “singular issue” at trial was whether the applicant was a party to that conspiracy. Thus, there was no need for an extended unanimity direction concerning whether the applicant was a party to a conspiracy to commit a terrorist act, whether it be the “bomb plot” or the “gas plot”: [115]-[116].

2. There was no error in allowing the lies to be relied on as consciousness of guilt because:

(a) There was no risk of the jury employing circular reasoning in their deliberations in this regard. The present case was not one where the asserted lies were the only evidence against the applicant nor was any of them an indispensable link in a chain of evidence necessary to prove guilt: [135]; and

(b) The jury was permitted to consider the asserted lies in light of other relevant evidence and, in the circumstances, it was open to the jury to conclude that any lies were material and that the applicant’s lying was only explicable on the basis that the truth would implicate the applicant: [145].

JUDGMENT

HARRISON CJ at CL: I have had the considerable advantage of reading the thorough and comprehensive judgment of Wright J, with which I agree. His Honour’s analysis with respect to the first ground of appeal succinctly and clearly exposes the distinction between those cases in which an extended unanimity direction is required and those cases, of which the present case is an example, in which it is not. The so-called bomb plot and the gas plot were no more than particulars of the alleged conspiracy and were not essential ingredients of the charged offence. It is understandable that no such direction was sought at trial.
I also note that his Honour’s review of the directions given by Adamson J (as her Honour then was) for the purposes of explaining the parties’ respective contentions with respect to the first ground of appeal has also served further to emphasise the clarity and commendable economy with which her Honour directed the jury on this issue at trial. Although no challenge was made in this Court to her Honour’s directions in terms, save for the asserted failure to give a direction that was not asked for, it is wholly unsurprising that no criticism was otherwise levelled at the way in which her Honour summarised the parties’ respective contentions to the jury.
WRIGHT J: By a notice of appeal filed on 14 February 2025, the applicant, Mahmoud Khayat, seeks to appeal against his conviction for conspiring to do acts in preparation for, or planning, a terrorist act or acts.

Procedural background

Between 20 August and 19 September 2019, the applicant was tried on an indictment containing one count, which alleged that the applicant:

“1. Between about 20 January 2017 and about 29 July 2017 at Sydney in the State of New South Wales and elsewhere, did conspire with Khaled Mahmoud Khayat and divers others to do acts in preparation for, or planning, a terrorist act (or acts).

Contrary to subsections 11.5(1) and 101.6(1) Criminal Code 1995 (Cth) …

Particulars of the Terrorist Act (or Acts)

The terrorist act (or acts) which was (or were) involved an action or a threat of action involving the use of an improvised explosive device or the use of an improvised chemical dispersal device or both that was (or were) to be done:

a) With the intention of advancing a political, religious or ideological cause, namely violent jihad; and

b) With the intention of:

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

ii. intimidating the public or a section of the public; and

c) In circumstances where the action, if carried out, would:

i. Cause serious harm that is physical harm to a person; and/or

ii. Cause serious damage to property; and/or

iii. Cause a person’s death; and/or

iv. Endanger a person’s life, other than the life of the person taking the action; and/or

v. Create a serious risk to the health or safety of the public or a section of the public; and

d) In circumstances where the action to be done or threatened would not be advocacy, protest, dissent or industrial action, or alternatively would not be advocacy, protest, dissent or industrial action of a kind not intended to:

i. Cause serious harm that is physical harm to a person; or

ii. Cause a person’s death; or

iii. Endanger a person’s life, other than the life of the person taking the action; or

iv. Create a serious risk to the health or safety of the public or a section of the public.”

On 19 September 2019, the jury returned a verdict of guilty. On 17 December 2019, the applicant was sentenced by the trial judge, Adamson J, to imprisonment for 36 years with a non-parole period of 27 years expiring on 28 July 2044: R v Khaled Khayat; R v Mahmoud Khayat (No 14) [2019] NSWSC 1817.

Steps taken in relation to an appeal

The applicant instructed his then solicitors to file a notice of intention to appeal and to obtain a merits advice but these solicitors ceased to contact him and he was unaware of what occurred, if anything.
It appears that, by early 2023, any notice of intention to appeal that may have been filed had ceased to have effect.
On 13 February 2023, the applicant retained his current solicitors and requested a transfer to them of his legal aid grant in relation to an appeal. On 27 March 2023, the legal aid grant was transferred.
Between 27 March 2023 and 22 May 2023, the applicant conferred with his solicitors and provided such documentation as he held.
Between 22 May 2023 and 19 February 2024, the applicant’s solicitors took steps to obtain copies of the transcripts of the trial, the exhibits and other relevant documentation.
In Mr Del Monte’s affidavit of 14 February 2025 it is stated that on 19 February 2024, a notice of intention to appeal with supporting affidavit was filed but the Court’s electronic records in JusticeLink do not include a record of such a document being filed on or about that date.
Between 2 April 2024 and 7 August 2024, the applicant’s solicitors obtained copies of the outstanding documentation from the trial.
In about late August or early September 2024, a brief was prepared to obtain a merits advice from Mr Odgers of Senior Counsel.
On 14 February 2025, a notice of appeal was filed together with an affidavit of Luke Del Monte providing information as to the steps taken by his firm after 27 March 2023 in relation to the appeal.

The appeal

In the circumstances, the notice of appeal was filed after the expiry of the applicable period for filing specified in r 3.5(2) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Criminal Appeal Rules). Accordingly, under r 3.5(5) of the Criminal Appeal Rules, the appeal or application for leave to appeal may be made only with the leave of the Court.
The grounds of appeal to be relied on if leave is granted to make the appeal or application for leave to appeal are:

“Ground 1. The trial judge erred in failing to give an extended unanimity direction.

Ground 2. The trial judge erred in allowing evidence of alleged lies of the appellant to be used to show consciousness [of] guilt.”

In addition to leave under r 3.5(5) of the Criminal Appeal Rules, the applicant also requires:
leave to appeal under r 4.15 of the Criminal Appeal Rules in respect of the first ground of appeal as objection was not taken at the trial to the omission to give an extended unanimity direction; and
leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) in respect of the second ground of appeal, since it involves a question of mixed law and fact.
It is appropriate to deal with the questions of leave to appeal when considering each ground.
The nature of the grounds of appeal requires a review of the Crown case at trial, the matters in issue and the directions of the trial judge.

The Crown case

The most pertinent aspects of the Crown case include the following. By 2014, one of the applicant’s brothers, Tarek Khayat, had moved to Syria with his sons and nephew to join in Islamic State’s activities as an armed opposition group in Syria fighting against the government regime of Bashar al-Assad with an objective of establishing an Islamic Caliphate in the region. Tarek ultimately became a sheikh in that organisation. During the relevant times, Tarek communicated with the applicant and another brother, Khaled Khayat. These communications included Tarek sending his brothers sermons he delivered in Syria concerning the religious and political objectives of Islamic State. As part of this, Tarek said, “Islamic State foster[s] the belief that Muslims who are unable to travel to places where violent jihad is taking place have a responsibility to conduct terrorist acts in their own countries”.
The Crown case was largely circumstantial and involved the contentions that from about 20 January 2017, the applicant and Khaled entered into an agreement with Tarek and “divers others”, to commit acts in preparation for, or planning, terrorist acts, motivated by the religious and political objectives advanced by Islamic State.
On the Crown case, the acts in preparation for terrorist acts involved, inter alia: the applicant and Khaled making arrangements for explosives to be sent from Turkey; the applicant and Khaled making arrangements to collect and collecting the explosives; the applicant and Khaled making arrangements to buy timers; and, another brother, Amer, taking steps to carry the explosives in a meat grinder or mincer with a timer on board an Etihad flight from Sydney to Lebanon intending to detonate the explosives at some point mid-flight. This was referred to at trial as the “bomb plot”.
The specific circumstances relied on in relation to the bomb plot included that on 21 January 2017, Tarek communicated with the applicant and requested that he ask Khaled to contact him urgently. The next day, 22 January 2017, Khaled sent a message to the applicant asking for the correct name and address of the applicant’s brother-in-law, Abdul-Karem Merhi. The applicant asked his wife, who was Abdul-Karem’s sister, to assist with this. The purpose of this was contended to be that the package containing explosives was to be sent from Turkey to Abdul-Karem’s address in Wiley Park to avoid incriminating the conspirators themselves.
On 13 April 2017, a parcel left Turkey for Abdul-Karem’s address. The waybill named him as the consignor and included an email address which, on the Crown case, the applicant had set up for that purpose. The package was labelled to indicate that it contained a “welding machine”. It was the Crown case that Tarek or one of his associates, referred to by the parties and in the evidence as “the Controller”, sent a photograph of the waybill via Telegram to Khaled and the applicant.

The defence case and issues at trial

The applicant’s written submissions on appeal included that he was interviewed after he was arrested and denied any knowledge of “any conspiracy to commit a terrorist act” and thus denied joining any such conspiracy. [2] He testified at trial, repeating that denial. He said he knew nothing of Khaled’s plans. His evidence was that any acts he did which provided assistance to Khaled in carrying out those plans were performed out of “filial obligation” ignorant of Khaled’s ultimate purpose. In addition, the applicant and his wife gave evidence explaining some of the circumstances relied on by the Crown and Khaled gave evidence that the applicant was not involved in the conspiracy.
The applicant’s written submissions on appeal set out in summary what was said not to be in issue at the trial and identified the issue that was in dispute, in the following terms: [3]

“there was no dispute that Tarek, Khaled and others had agreed in 2017 that a terrorist act or acts would be committed, and that Khaled, in particular, had done acts in preparation for, or planning, that terrorist act or acts. There was no dispute that Khaled, in particular, planned with others to cause a bomb to detonate on a plane in the course of a terrorist act and also planned to cause the dispersal of poisonous gas in the course of another terrorist act. The dispute at the trial was whether the [applicant] was a party to the plan to commit the terrorist act or acts.”

It is useful to pause at this point to note that the applicant’s formulation of what was in dispute at the trial, namely whether he was a party to “the plan to commit the terrorist act or acts” is not an entirely accurate reflection of the actual charge against the applicant. The applicant was not charged with conspiracy to “engage in a terrorist act” contrary to ss 11.5(1) and 101.1(1) of the Criminal Code (Cth). The charge which the applicant faced was conspiracy “to do acts in preparation for, or planning, a terrorist act (or acts)” contrary to ss 11.5(1) and 101.6(1) of the Criminal Code. By virtue of s 101.6(2)(b), that conspiracy was not required to relate to acts “done in preparation for, or planning, a specific terrorist act”.
Understood in light of the charge against the applicant and the defence closing address, [4] the primary issue at the trial was whether the applicant was a party to the agreement that was accepted by the defence to have existed between Khaled, Tarek and others, to do acts in preparation for or planning a terrorist act or acts.

The trial judge’s relevant directions

The trial judge’s directions concerning the elements of the charge each of which the Crown was required to prove beyond reasonable doubt were given orally, and in writing, MFI 12.
MFI 12 relevantly included the following:

“ELEMENTS OF THE CHARGE

To prove the conspiracy charge against the accused MAHMOUD KHAYAT, the Crown must prove beyond reasonable doubt each of the following elements in 1, 2, 3 and 4:

The joint act element

1. The accused … entered into an agreement with at least one other party to achieve the objective of doing something that would amount to any acts done in preparation for or planning a terrorist attack (the Conspiratorial Agreement).

[MFI 12 then set out what would amount to a terrorist act]

The joint intention element

2. The accused … and at least one other party to the Conspiratorial Agreement intended to achieve that objective: that is the accused … and at least one other party to the agreement knew, or believed, that what they were agreeing to was that something would be done, which, if carried out, would amount to doing any act in preparation for or planning a terrorist act.

The accused’s intention element

3. The accused … intended, that is, he meant, to enter into the Conspiratorial Agreement.

The overt act element

4. At least one of the parties to the Conspiratorial Agreement did an act (referred to as an overt act) pursuant to the Conspiratorial Agreement.

An overt act is simply a step that is taken in carrying out the Conspiratorial Agreement

Note:

(i) It is not necessary for the Crown to prove that the act in preparation for or planning a terrorist act or acts was done in preparation for a specific terrorist act.”

The trial judge’s oral directions concerning the elements of the charge included:

“38 Now, I have referred to MFI 12 and so you all have got a copy. I hope you have got it to hand and that when you are in the jury room you can work your way through that, because I hope it will be a useful reminder of the elements of the offence. You really must have that in the course of your deliberation. As I said, each element must be proved beyond reasonable doubt.

39 I will just go to the count alleged in the indictment. It alleges an ongoing conspiracy between the accused and others, which is alleged to have been on foot between about 20 January 2017 and 29 July 2017, which is alleged to have arisen from an agreement to do acts in preparation for planning a terrorist act.

40 A ‘conspiracy’ is an agreement between two or more persons to commit a crime. The relevant crime, which is alleged to have been the subject of the conspiracy, is doing an act or acts in preparation for or planning a terrorist act. The Crown alleges that the accused, Khaled Khayat - and to quote from the indictment – ‘divers others’ were the parties to such a conspiracy.

41 The core of the offence is the agreement to engage in a common enterprise to do the unlawful act or crime alleged. The Crown must prove a joint act, that is, that there was an agreement – and that is element 1 on MFI 12; a joint intention, that is that the parties shared a common intention and that there was a meeting of the minds to achieve that objective – that is element 2; that the accused intended to enter into the agreement – that is element 3; and that at least one overt act was done by any one of the parties to the conspiracy in furtherance of the agreement – that is element 4.

42 Now the word ‘intention’ is a familiar one and carries its ordinary meaning in this legal context. Intention may be inferred or deduced from the circumstances and from the conduct of the accused. Whatever a person says about their intention may be examined for the purpose of finding out what in fact that intention was at the relevant time. In some cases, a person’s acts or words by themselves provide the most convincing evidence of their intention. Where a specific result is the obvious and inevitable consequence of a person’s act and where they deliberately do that act, it would be open to you to conclude that the person did that act with the intention of achieving that specific result.

43 You will see from the elements that the expression ‘terrorist act’ is defined. The definition is set out under element 1 on the first page, you can see there are four matters, (a), (b), (c) and (d), to be satisfied there, each of which must be satisfied beyond reasonable doubt before you can find something is a terrorist act. …

44 The Crown alleges that the terrorist act or acts involved the proposed use of an improvised explosive device or bomb and/or an improvised chemical dispersal device, a poisonous gas; known in shorthand as the ‘bomb plot’ and the ‘gas plot’.

…

46 Conspiracy is a continuous crime. It extends over the period of the agreement until the police intervene or the object of the agreement is achieved. It remains a single conspiracy as long as the parties to the agreement act in combination to achieve the same criminal objective. Because conspiracy is a continuing offence, the Crown does not have to prove the precise date on which the agreement was made. Rather, the prosecution can prove that the accused and at least one other person were parties to the agreement to commit an offence during the period alleged in the indictment, that is, between 20 January 2017 on 29 July 2017. The dates alleged in the indictment are the outer limits of that period. You do not have to be satisfied that the conspiratorial agreement was on foot for all the period. If you are satisfied of the elements in respect of the accused in respect of a shorter period within that range you would be obliged to convict the accused.

47 A conspiratorial agreement may be implied rather than expressed in words. You may deduce or infer from what people do that they have agreed to act in a particular way in order to achieve an unlawful purpose or to do an unlawful act. In the present case the Crown seeks to prove the agreement and the nature of the agreement by inference from circumstantial evidence. I have already given you directions about circumstantial evidence and drawing inferences.

48 The offence of conspiracy requires more than just an agreement to commit an unlawful act. The offence of conspiracy is incomplete, unless one of the parties to the conspiratorial agreement has committed what is called an ‘overt act’ pursuant to the agreement. An overt act is simply a step that is taken in carrying out the agreement. It is not, however, an element of the offence of conspiracy that the unlawful act that is intended to be committed, namely, the gas plot all the bomb plot, is in fact committed.

49 As the wording of element 4 indicates you only need to be satisfied of one overt act. However, it is necessary that you be unanimous about the existence of at least one particular overt act. The Crown has identified various overt acts, on which it relies, of which I will remind you when I come to summarise the Crown case.”

In summarising the Crown case, her Honour also touched upon the relevant elements of the offence as follows:

“212 The Crown submitted that the accused was a party to a conspiracy with his brothers Khaled and Tarek and the Controller to do acts in preparation for, or planning, a terrorist act or acts.

213 The Crown relied on what it described as the bomb plot and the gas plot. The bomb plot was the plan to put the bomb onto a plane which would explode mid-flight. The gas plot was a plan to make a poisonous gas, hydrogen sulphide, which would be released in a confined public space such as a train carriage or a bus which would kill people. The Crown also referred to another plot which involved the use of acetone.

214 The Crown submitted that you should reject the evidence of the accused that he was just helping his brother Khaled and did not know what was going on. The Crown submitted that the objective evidence pointed to the accused’s involvement in the conspiracy and established that he helped his brother at crucial times knowing what was going on. The Crown submitted that it was not necessary for it to prove the accused was party to the whole agreement between the other three, it was sufficient that he was party to an agreement to do at least one act in preparation for a terrorist act even if the agreement did not cover all the acts contemplated by Khaled, Tarek and the Controller, or any combination of them.

…

217 Just dealing with the question of whether these acts amounted to terrorist acts, the Crown submitted that you would be satisfied that if the bomb plot or the gas plot were carried out, the acts would constitute a terrorist act within the meaning of the definition set out under element 1 in MFI 12. Now [counsel for the applicant at trial] has indicated that there is no real dispute about this but nonetheless you still need to be satisfied of these things in MFI 12.

…

224 The Crown submitted that there was plainly a conspiracy between Khaled, Tarek and the Controller relating to the bomb plot and the gas plot as well as the acetone plot. The Crown identified as the real issue in the case whether the accused, too, knew what was going on. In other words, was he a party to the conspiracy with at least one other person to do an act or acts in preparation for a terrorist act.

225 The Crown relied on a number of matters which he contended amounted to circumstantial evidence sufficient to prove the accused’s involvement in the conspiracy by helping Khaled to advance these plots. The Crown emphasised that it needed to prove only that the accused was party to an agreement with at least one other party to do acts in preparation for a terrorist act or acts. It did not need to prove that the accused knew everything about the bomb or the gas plots.

…

256 The Crown submitted that the fingerprint evidence was a substantial piece of forensic evidence which implicated the accused in the conspiracy and proved, when viewed with the whole of the evidence in the trial, that the accused was a willing and intentional participant in the conspiracy regarding the bomb plot with Khaled, Tarek and the Controller and was guilty of the charge.

257 I will turn now to the chemical plot. The Crown relied heavily on the events of 29 July 2017 in support of its submission that the accused was a party to the gas plot. The Crown relied on the circumstances that the accused had collected Khaled from Sproule Street that morning. He submitted that the accused must have been aware of the plastic bag that Khaled had brought with him into the front seat and the towel which Khaled put in the boot of the Nissan Pulsar and then took out when they arrived at Victoria Road.

258 The Crown relied on the forensic evidence,… the agreed facts… the surveillance film and the surveillance log, as well as the admissions made by the accused that he had seen Khaled playing with the barbecue. The Crown also relied on the presence of the plate on the barbecue when the search was conducted ... and the later testing of the chemicals on that plate.

259 The Crown submitted that the accused’s close involvement in these acts and the accused’s presence at the scene was inconsistent with his innocence and that you would infer that he knew what Khaled was doing when, as the Crown submitted, Khaled did the test burn on the barbecue in the area behind the Victoria Road premises on 29 July.”

The trial judge’s oral directions in relation to the Crown case concerning the overt acts element also included the following:

“265 Turning now to overt acts, the Crown reminded you that you only needed to be satisfied of one overt act by at least one party to the conspiracy for the purposes of element 4 of the offence in MFI 12. The Crown reminded you that, as I have said in MFI 12, he does not need to be the accused who performs the overt act as long as the overt act is performed by at least one of the parties to the conspiracy. Accordingly, the Crown also relied on Tarek’s sending of the welding machine, which contained the bomb, from Turkey to Abdul Karem’s residence in Sydney.

266 The Crown submitted that various overt acts were done by the accused and Khaled pursuant to the conspiracy performed over a period of months until the rest of the two accused on 29 July. Other overt acts relied on by the Crown included the obtaining of the correct name and address of Abdul Karem Mehri for the DHL package; the collection of the package; the purchase and testing of the timer; the wiring of the batteries; the research into a timer that could be used with a 9 volt battery, which was smaller than a 12-volt battery or two 6-volt batteries and which could therefore fit into the meat mincer; the purchase and preparation of the aluminium and sulphur; the burning of the sulphur and the aluminium which resulted in the heat affected chemical found in the kitchen at Sproule Street and the chemicals in the garage at Sproule Street as well as the bags in the front driver’s seat of the Toyota Corolla which was searched by police.”

In summarising the accused’s case, the trial judge noted as follows:

“275 I will turn now to summarise the case of the accused. At the outset [Counsel for the accused at trial] submitted that you would be ‘totally satisfied’ that Khaled, Tarek and the Controller were party to the conspiracy alleged. He identified as the issue in the trial whether the accused was party to any such agreement. He submitted that you would not be satisfied that the accused was party to the conspiracy and pointed to a number of factors which he contended would create at least a reasonable doubt in your mind and lead you to return a verdict of not guilty.”

Finally, the trial judge mentioned a number of matters relating to the jury’s deliberations including, in relation to unanimity, the following:

“316 First, under our system of law your verdict on the charge, whether it be guilty or not guilty, must be unanimous. That does not mean that each of you must agree on the same reasons for your verdict. You may individually rely on different parts of the evidence or place different emphasis on certain parts of the evidence.”

Against that background, I turn now to consider each ground of appeal in turn.

Ground 1

The first ground of appeal was that the trial judge erred in failing to give an extended unanimity direction.

Submissions

The applicant submitted the Crown case was that the applicant was a party to a conspiratorial agreement to do acts in preparation for, or planning, a terrorist act or acts and that the relevant terrorist act or acts was the bomb plot, or the gas plot or both. It was contended that, in these circumstances and in light of the summing up, “the jury would have understood that, to find the applicant guilty, they would have to at least be satisfied beyond reasonable doubt that he was a party to the ‘bomb plot ‘or a party to the ‘gas plot’”. [5] The defence case was said to be that he was a party to neither plot. In these circumstances, it was submitted that the standard unanimity direction given at par 316 of the summing up was inadequate and an extended unanimity direction was required.
The applicant drew attention to the circumstances in which an extended unanimity direction was said to be required in authorities such as R v Walsh [2002] VSCA 98 (Walsh) at [57]; 131 A Crim R 299 and Ribbon v The Queen (2019) 134 SASR 328; [2019] SASCFC 130 at [260]-[261]. It was submitted that since the bomb plot and the gas plot were left to the jury as alternate bases for finding a terrorist act in the present case, different jurors may have taken different paths to the conclusion that the applicant was guilty of the offence. Thus, it was contended that without an extended unanimity direction, it was “uncertain whether the jury were unanimous that the [applicant] was a party to at least one of the plots relied upon by the Crown”. [6]
In these circumstances, it was submitted that the jury should have been directed as follows: [7]

“However, in circumstances where the Crown alleges that the terrorist act or acts that the accused entered into an agreement to prepare for or planned, pursuant to element one, was the ‘bomb plot’ and the ‘gas plot’, I direct you that your verdict must be unanimous with respect to at least one of the following three scenarios:

1. That the accused entered into an agreement to prepare for, or planned, the bomb plot; OR

2. That the accused entered into an agreement to prepare for, or planned, the gas plot; OR

3. That the accused entered into an agreement to prepare for or planned, both the bomb plot and the gas plot.

Putting the same direction in a slightly different way, you could not return a verdict of guilty if some of you were satisfied beyond reasonable doubt that the accused entered into an agreement to prepare for or planned the bomb plot but were not satisfied that he entered into an agreement to prepare for or plan the gas plot, and the rest of you were satisfied beyond reasonable doubt that the accused entered into do an agreement to prepare for or plan the gas plot but were not satisfied that he entered into an agreement to prepare for or plan the bomb plot.”

The applicant further contended that even though trial counsel did not seek such a direction, if an extended unanimity direction was required, leave to appeal on this ground should be given. Furthermore it was submitted that the absence of a necessary direction meant that it could not be assumed that the jury had discharged its functions to reach a unanimous verdict as required. It was then said to follow that the way in which the jury was directed was “apt to prevent the performance by the jury of its function” and, without more, this resulted in a substantial miscarriage of justice.
The Crown submitted that having regard to the nature of a conspiracy charge, the distinction between a preparatory act and a terrorist act or acts and in light of authority, the first ground of appeal should be rejected.
The Crown referred to the physical and fault elements of an offence of conspiracy under s 11.5(1) and s 5.6(1) of the Criminal Code and the matters that are required to be proved for a person to be found guilty of conspiracy, under s 11.5(2)(a), (b) and (c), as explained in Director of Public Prosecutions (Cth) v Kola (2024) 279 CLR 104; [2024] HCA 14 (Kola) and R v LK (2010) 241 CLR 177; [2010] HCA 17 (LK). It was then contended that, although particulars of the conspiracy may be given, those particulars are not essential ingredients of the offence. Rather, the gist of the offence of conspiracy is an agreement to participate in organised criminal activity.
The Crown then submitted that it is permissible to charge a single conspiracy to commit multiple preparatory acts including where the preparatory acts were directed to one or more terrorist acts. It was noted that conspiracy is a continuing offence and it remains a single offence notwithstanding that, during its currency, a number of identifiable and separate acts within its general purpose may be carried out. Furthermore, it was said that, given the preparatory nature of a conspiracy to do acts in preparation or planning for a terrorist act, it is not necessary to identify a specific target of or method of carrying out any terrorist act. This was also submitted to be supported by the terms of s 101.6(2) which provide that a person commits an offence under s 101.6(1), even if a person’s act is not done in preparation for or planning a specific, or more than one, terrorist act.
The Crown submitted that an extended unanimity direction may be required in circumstances where various discrete acts are relied upon as proof and any one of them would entitle the jury to convict and if those discrete acts go to the proof of an essential ingredient of the crime charged. This was said to be because in that situation the jury could not convict unless they were agreed upon the act which constituted that essential ingredient. This was contrasted with the situation where the same body of evidence may be relied on for different outcomes on legal liability, for example, in the case of murder or manslaughter.

Consideration

General principles

For the reasons explained by Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ in Cheatle v The Queen (1977) 177 CLR 541; [1993] HCA 44, s 80 of the Constitution requires that a trial on indictment of an offence against ss 11.5(1) and 101.6(1) of the Criminal Code be by jury and that the jury’s verdict be unanimous. In general terms, unanimity requires each essential ingredient of the charged offence to be proved to the requisite standard to the satisfaction of each and every member of the jury. In the present case, there was no challenge to the directions given by the trial judge in respect of unanimity generally. Rather, the first ground of appeal involved the contention that a further, extended unanimity direction was required concerning the terrorist act or acts in relation to which the applicant was alleged to have conspired to do acts in preparation or planning. By failing to give such an extended unanimity direction, it was said the trial judge erred.
It is to be accepted that generally each juror is not required to follow the same evidential route in reaching a verdict of guilty in order for there to be a unanimous verdict: AKB v The King [2024] NSWCCA 169 (AKB) at [58] (Gleeson JA with Walton J agreeing and Dhanji J agreeing in part). Where, however, having regard to the particular elements of the offence, the parties’ cases at trial and the evidence adduced, the jury is or may be presented with different factual routes or pathways to determine guilt, a direction may be required that the jury must be unanimous in finding which one of several particular facts occurred in order to establish the guilt of the accused for the offence charged: AKB at [58]; Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (Country Care) (2020) 275 FCR 342; [2020] FCAFC 30 at [76] (Allsop CJ, Wigney and Abraham JJ).
The underlying justification for a requirement for an extended unanimity direction can be seen as arising out the need for certainty as to the basis on which an offender has been convicted given the requirement for unanimity as to guilt of the offence charged: Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 at [45] (Kiefel CJ, Bell, Keane and Edelman JJ). Put another way, an extended unanimity direction serves to avoid the risk that, without such a direction, different jurors might in effect convict an accused of different offences encompassed within a single count, as is implicit in the judgment of the English Court of Appeal in R v Hancock, Warner and Michael [1996] 2 Cr.App.R. 554 (Hancock) at 559 (Stuart-Smith L.J who read the judgment of the Court of Appeal).
In considering whether an extended unanimity direction is required, a distinction is commonly drawn between cases involving alternative legal formulations of liability based on the same or substantially the same facts and cases which present alternative factual bases of liability: at [59], at [77]. In the first type of case, the authorities establish that generally there is no need for an extended unanimity direction as any verdict of guilty will be unanimous for the offence even if the basis on which the accused is liable for that offence differs between jurors. In the second type of case, however, where there are alternative pathways or routes to a verdict of guilty some form of extended unanimity direction may be required in some instances. Otherwise, the jury may not be unanimous with regard to a specific offence.

“… The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend “upon the precise nature of the charge, the nature of the prosecution’s case and the defence and what are the live issues at the conclusion of the evidence”. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud.”

As this Court accepted in AKB at [64], this passage from Walsh, which reflected the comments by Lord Ackner in R v More (1988) 86 Cr App R 234 at 252, [8] emphasises that whether an extended unanimity direction is required in a case where a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict will depend on:
the precise nature of the charge and, in particular, its essential ingredients; and
the nature of the parties’ cases and the live issues that remain at the conclusion of the evidence.
These two factors are of particular relevance in the present case and will be addressed in turn.

The essential ingredients of the charge

In considering the significance of the essential ingredients in this context, the Victorian Court of Appeal in Walsh noted, by way of example, the different ingredients which must be proved in the case of a charge of obtaining property by deception by means of misrepresentation compared to the essential ingredients of a charge of conspiracy to defraud by dishonestly making false representations. In the former case, the making of a misrepresentation is an essential ingredient of the offence and it follows that the jury must be unanimous as to the misrepresentation made. Thus, if evidence of more than one misrepresentation is relied on by the prosecution, the jury must be unanimous as to which one or more of the misrepresentations was made and an extended unanimity direction in that regard is required. By way of contrast, in the case of conspiracy to defraud by making false representations, an agreement to make any particular representation is not an essential ingredient of the offence and, accordingly, the jury is not required to be unanimous as to whether there was an agreement to make one rather than another representation even if the prosecution relies on evidence of more than one representation being the subject of the agreement. In the latter situation, no extended unanimity direction is necessary or appropriate.
Particulars of a charge may be a complicating factor in this context. In a case where various discrete acts are relied upon as proof and any one of them would entitle the jury to convict, particulars of the discrete acts would ordinarily be given in order to inform the defence of the nature of the case it was required to meet. The fact that certain acts are particularised in such a case does not, of itself, lead to the conclusion that an extended unanimity direction is required. If none of the particularised acts is an essential ingredient of the offence, there will generally be no uncertainty as to the basis on which the accused has been found guilty. Nor will there be a risk of different jurors convicting of different offences encompassed within the same count. Stuart-Smith LJ explained the relationship between particulars and essential ingredients of a conspiracy to defraud offence in Hancock at 559-560:

"The question therefore is whether each of the particulars in the count constitute an essential ingredient of the offence charged, such that if any one of the particulars was proved the accused is guilty of the offence. Or as Mr Farrer Q.C. put it: is there a real risk of different jurors convicting of different offences encompassed within the single count? The answer in our judgment is plainly ‘No’. The essential ingredients of the offence of conspiracy to defraud, or what the Crown had to prove to establish the actus reus of the offence is that each of the accused has entered into an agreement to defraud the agents. It was necessary to prove that there was an agreement to act dishonestly to prejudice the agents and that each of the accused was party to that agreement.

Since the case of Landy (1981) 72 Cr.App.R. 237; [1981] 1 W.L.R. 355, in a case where conspiracy to defraud is alleged, the Crown are required to set out sufficient particulars of the offence to enable the defence and the judge to know precisely, and on the face of the indictment itself, the nature of the prosecution case and to stop the prosecution shifting their ground during the course of the case. But simply because particulars of an offence are given does not mean that those particulars are an essential ingredient of the offence. In a case such as this the particulars do no more than specify the nature of the case the prosecution seek to prove and the principal overt acts upon which they rely to invite the jury to infer that there was a dishonest agreement and that a particular defendant was a party to it.”

Thus, in the case of a conspiracy to defraud by misrepresentation, although particulars of various misrepresentations which were the subject of the conspiratorial agreement may have been given and evidence of those misrepresentations relied on by the prosecution, an extended unanimity direction would not be required if those misrepresentations were not an essential ingredient of the offence. More specifically, such a direction would not be required where the essential ingredients of the offence did not include that the conspiratorial agreement involved making any particular misrepresentation.
The question then arises whether this reasoning in relation to an extended unanimity direction in the context of a charge of conspiracy to defraud also applies in relation to a charge of conspiracy to do acts in preparation for, or planning, a terrorist act or acts contrary to ss 11.5(1) and 101.6(1) of the Criminal Code.
Section 11.5 of the Criminal Code relevantly includes:

“(1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, commits the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.

(2) For the person to be guilty:

(a) the person must have entered into an agreement with one or more other persons; and

(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and

(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

…”.

The offence of conspiracy created by s 11.5(1) has a single “physical element”, as referred to in ss 3.1(1) and 4.1(1) of the Criminal Code, namely conduct that the accused conspired with another person to commit a non-trivial offence: Kola at [21] and LK at [141]. The “fault element”, as referred to in s 3.1(1), in respect of that physical element is intention, being the default element under s 5.6(1). Thus, the fault element is that the accused meant to enter into or adhere to an agreement to commit the relevant offence the subject of the conspiracy: Kola at [21].
Section 5.2(1) and (3) of the Criminal Code establish that a person has “intention” as a fault element:
with respect to conduct, if the person means to engage in that conduct; and
with respect to a result, if the person means to bring it about or is aware that it will occur in the ordinary course of events.
Section 11.5(2)(a) and (b) explain what it means to "conspire" as referred to in s 11.5(1). However, neither para (a), nor (b), nor (c) of s 11.5(2) is an “element” of the conspiracy offence created by s 11.5(1): Kola at [21].
From this it follows that the essential ingredients (as opposed to “elements” as identified in the Criminal Code) which must be proved for a person to be found guilty of an offence of conspiracy under s 11.5 are:
The person entered into an agreement with at least one other party to do something that would amount to an offence of the type referred to in s 11.5(1);
The person intended, that is the person meant, to enter into that agreement;
The person and at least one other party to the agreement intended that an offence of the type referred to in s 11.5(1) would be committed pursuant to the agreement; and
the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
In the present case, the applicant was charged with conspiracy to commit the offence referred to in s 101.6(1) of the Criminal Code which is punishable by imprisonment for more than 12 months and thus is an offence of the type referred to in s 11.5(1). Section 101.6 relevantly provides:

“101.6 Other acts done in preparation for, or planning, terrorist acts

(1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty: Imprisonment for life.

(2) A person commits an offence under subsection (1) even if:

(a) a terrorist act does not occur; or

(b) the person’s act is not done in preparation for, or planning, a specific terrorist act; or

(c) the person’s act is done in preparation for, or planning, more than one terrorist act.

…”.

The expression “terrorist act” is defined in s 100.1(1) as follows:

“terrorist act means an action or threat of action where:

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

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

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

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

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

Subsections (2) and (3) of s 100.1, which are referred to in the definition of “terrorist act”, are in the following terms:

“(2) Action falls within this subsection if it:

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

(b) causes serious damage to property; or

(c) causes a person’s death; or

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

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

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

(i) an information system; or

(ii) a telecommunications system; or

(iii) a financial system; or

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

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

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

(3) Action falls within this subsection if it:

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

(b) is not intended:

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

(ii) to cause a person’s death; or

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

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

There are a number of significant and related aspects of the offence created by s 101.6(1) which must be noted. First, the offence created by s 101.6(1) relates to conduct which is preparatory to another offence, namely engaging in a terrorist act contrary to s 101.1(1). In Lodhi v R [2006] NSWCCA 121; 199 FLR 303, Spigelman CJ (with McClellan CJ at CL and Sully J agreeing) observed in relation to s 101.6, at [66]:

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

Secondly, by virtue of s 101.6(2)(b) and (c), an offence under subs (1) is committed even if the person’s conduct is not done in preparation for, or planning, a specific terrorist act or is done in preparation for, or planning, more than one terrorist act. Section 101.6(2)(b) and (c) were introduced by the Anti-Terrorism Act 2005 (Cth).
The Second Reading Speech in respect of the Anti-Terrorism Bill 2005 (Cth) including the following: [9]

“The amendments before the House today ensure that the terrorist act offences in part 5.3 of the Criminal Code are interpreted as they were originally intended to be interpreted.

They clarify that in a prosecution for a terrorist offence, it is not necessary to identify a particular terrorist act.

The existing offences contain a subsection that provides that a person commits the offence even if ‘the’ terrorist act does not occur.

When the offences were originally drafted, it was not the intention that the prosecution would be required to identify a ‘particular’ terrorist act.

The amendments will clarify that it is not necessary for the prosecution to identify a specific terrorist act.

It will be sufficient for the prosecution to prove that the particular conduct was related to ‘a’ terrorist act.”

The relevant Explanatory Memorandum to the Bill stated:

“The amendments will simply clarify that it is not necessary for the prosecution to identify a specific terrorist act. It will be sufficient for the prosecution to prove that the particular conduct was related to ‘a’ terrorist act. The amendments will ensure the relevant offences will be available where a person is considering a range of activities that are still in formative stages and not advanced to the point of the details being decided upon. For example, a person or group of persons may be considering a range of activities such as killing persons or detonating a bomb. However, that person or group may not have decided which of the activities will be carried out, nor the time, date or method of such activities. In other words, in proving one of the amended offences it will not be necessary to establish that the person has settled on a particular target, time or date or other specific particulars of the action or threat of action said to constitute the terrorist act. For example, where the person has settled on an action such as destroying a Government building but has not decided on a particular building, time or date this would fall within the concept of a terrorist act.”

Spigelman CJ (James and Howie JJ agreeing) commented on these amendments to s 101.6 in R v B (2008) 76 NSWLR 533; [2008] NSWCCA 85 (R v B), at [45]-[51]:

“45 The reasoning in Lodhi is of course reinforced by the express reference in s 101.6(2)(b) to the fact that the preparatory act does not have to be directed to a specific terrorist act. It is relevant to point out that, at the time of the challenge to the indictment in Lodhi, the section included only s 101.6(2)(a). Subparagraphs (b) and (c) commenced operation on 4 November 2005 when Sch 1 of the Anti-Terrorism Act 2005 (Cth) came into force.

46 The pleading to which objection is taken is based on s 101.6(2)(c) which must be understood in the light of s 101.6(2)(b), ie there does not have to be a “specific terrorist act”. It is readily apparent that if there does not have to be an identifiable terrorist act at all, it does not matter whether the offender or offenders has or have determined whether or not there should be one or more than one terrorist act.

47 The focus of the section is on the preparatory act or acts, to the plurality of which no complaint is made. An agreement to perform multiple preparatory acts does not, in my view, differ in substance or form if the preparatory acts are to be directed to one or more ultimate terrorist acts.

48 Issues of this character have long been resolved in the law of conspiracy. As Jordan CJ said with respect to the cognate crime of conspiracy to defraud:

“An agreement to cheat and defraud is an indictable conspiracy notwithstanding that the parties have not yet agreed upon the precise form of cheating to be used … nor upon who are to be victims … If, however, the conspiracy charged is an agreement to cheat certain persons then and there decided upon, the indictment should sufficiently identify those persons.” (Ongley at 117, references omitted.)

49 The reference to terrorist act or acts in [s 101.6] is equivalent to the reference to “one or more forbidden characteristics” within the analysis of duplicity of Bray CJ in Romeyko v Samuels (1972) 2 SASR 529 at 552; (1972) 19 FLR 322 at 345 where his Honour said:

“The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow.”

…

50 After referring to this authority in Lodhi v The Queen, I said with respect to the expansive definition of “terrorist act”:

“[75] … the scope and nature of the legislative scheme, concerned as it is with terrorist acts, which recent experience suggests are likely to have all three effects at the same time, Parliament intended to create a single offence with one or more of the specified characteristics.”

51 The same analysis applies to reject the asserted difference between an agreement to commit one terrorist act and an agreement to commit more than one terrorist act. With respect to an offence under [s 101.6] itself, or with respect to an agreement to commit such offences under s 11.5(1), there is no element of duplicity by pleading the statutory provision identifying “forbidden characteristics”, to use Bray CJ’s words.”

This reasoning is consistent with the fact that, under s 101.6(2) there does not have to be any specific terrorist act which is being prepared for or planned. In addition, it also does not matter whether the persons involved have determined whether or not there should be one, or more than one, terrorist act which was being prepared for or planned.
In Abbas v The Queen [2022] VSCA 39; 297 A Crim R 1 (Abbas), the Victorian Court of Appeal dealt with an appeal against a conviction for conspiracy to do an act or acts in preparation for, or planning, a terrorist act contrary to ss 11.5(1) and 101.6(1). The grounds of appeal included in ground 1 that the trial judge had erred in relation to directions as to the “mental element” of the offence. One particular contention was that the trial judge erred by failing to direct the jury that an act in preparation for a terrorist act must be an act that is intended “to advance the commission of a terrorist act”, and that the offence requires that the accused “intended that an act be committed which would advance the commission of a terrorist act” on the basis that the attitude of the offender towards the commission of a terrorist act is at the heart of the substantive offence of doing an act in preparation for a terrorist act. The Court of Appeal rejected that latter proposition. T Forrest, Emerton and Kennedy JJA explained why this proposition was rejected at [101] as follows:

“The ‘substantive offence’ is created by s 101.6(1) of the Criminal Code, which provides that a person commits an offence if that person does any act in preparation for, or planning, a terrorist act. The respondent correctly submits that the elements of the substantive offence can be straightforwardly drawn from the law that creates it. The physical element of the offence is the doing of an act in preparation for, or planning, a terrorist act. That physical element consisting of conduct, the relevant mental or fault element for the offence is intention. As was said in R v LK, ‘[u]nder the [Criminal] Code, fault elements apply to physical elements of an offence’, and the Code does not contemplate the application of a fault element of an offence to anything other than a physical element of that offence. As a matter of straightforward statutory construction, it is clear that the intention that the provision requires applies to the act done in preparation for or planning a terrorist act, and that act only. The contemplated terrorist act is not a part of the physical element of the offence; that the terrorist act is contemplated (or prepared for or planned) is simply the condition necessary to render the described act a criminal act.” (Footnotes omitted, emphasis added)

In light of terms of s 101.6(1) and (2)(a), (b) and (c), their context and purpose, and relevant authorities including the reasoning in Lodhi, R v B and Abbas, in my view s 101.6 has been and should be construed as providing that an offence against s 101.6(1) is committed by the doing of any act of the type specified in that subsection, namely “any act in preparation for, or planning, a terrorist act”, with the necessary intention, which is the relevant fault element by virtue of s 5.6(1). The terms of pars (b) and (c) of s 101.6(2) confirm that the existence of one or more specific terrorists acts which are being prepared for or planned is not an essential ingredient of the offence contrary to s 101.6(1). In other words, the relevant ingredient is in effect that the act done must be of such a type as to meet the statutory description of an “act in preparation for, or planning, a terrorist act” without the need for there to be any specific terrorist act identified.
Accordingly, the essential ingredients of the offence under s 11.5(1) of conspiracy to commit an offence contrary to s 101.6(1) do not include the existence of one or more specific terrorist acts in respect of which there is an agreement to do preparatory acts or planning. Rather the essential ingredients for the offence of conspiracy to do acts in preparation for, or planning, a terrorist act might be formulated, at a general level and without regard to the specific factual issues in a particular case, as follows:
The person entered into an agreement with at least one other party to do an act or acts meeting the description of an act in preparation for, or planning, a terrorist act;
The person intended, that is meant, to enter into that agreement;
The person and at least one other party to the agreement intended that an act meeting the description of an act done in preparation for, or planning, a terrorist act would be done pursuant to the agreement; and
the person or at least one other party to the agreement committed an overt act pursuant to the agreement.
The essential ingredients identified by the trial judge for the jury in her Honour’s summing up and written directions, which have been quoted above at [51] and [52], were consistent with this. Indeed, on this appeal there was no challenge to the trial judge’s formulation of the essential ingredients of the offence charged under ss 11.5(1) and 101.6(1).
By way of contrast, it can be noted that, since the commission of an overt act is an essential ingredient of the offence of conspiracy to do an act in preparation for, or planning, a terrorist act by virtue of s 11.5(2)(c), the jury must be unanimous as to the existence of at least one particular overt act. Such a direction was given by the trial judge in the present case, at par 49 of the oral directions, quoted at [52] above.

“21. The elements of the offence may be proved without proving a specific discussion or identification of any particular target. Planning and fostering of a terrorist activity can occur before any target is identified or discussed. Thus, the identification of certain targets particularised by the Crown does not form the pathway to the proof of the elements; it is merely evidence of the activities and discussions of the Shura, which, in turn, give the context of its operations and the knowledge of the accused.

…

It is the organisation that must be a terrorist organisation and, in order for it to be a terrorist organisation, it must be involved in, relevantly, planning or fostering a terrorist act. Further, the director, in this case allegedly the accused, must know that the organisation he or she directs is a terrorist organisation, i.e. one that is so involved. I reiterate, the target need not have been discussed or determined in order for the organisation to be a terrorist organisation or in order for the accused to have directed a terrorist organisation, knowing it to be a terrorist organisation. The particulars of possible targets are not different factual pathways to guilt and none of them are essential to the establishment of guilt.”

A similar approach was taken by Lonergan J in R v Lucas [2023] NSWSC 1195; 382 FLR 199 where her Honour held it was inappropriate in that case to give an extended unanimity direction in relation to a charge of doing an act or acts in preparation for or planning a terrorist act or acts in contravention of s 101.6(1) of the Criminal Code. The Crown case was that the accused had done “acts in preparation for a terrorist act or acts on critical infrastructure, a military facility or a place of worship”. The extended unanimity direction sought was to the effect that the jury must be unanimous as to the acts being preparatory to at least one type of target namely critical infrastructure or a military facility or a place of worship. At [25] and [26], Lonergan J said:

“25. It would be contrary to the text of the offence-creating provision to direct the jury that they must also be unanimous regarding the category of target, in circumstances where the legislation specifically contemplated - and since the Anti-Terrorism Act 2005 (Cth) specifically states - that the planning and preparation need not be for a specific act and can be for more than one terrorist act.

26. The final paragraph of the proposed extended unanimity direction suggests to the jury that a level of specificity for a future terrorist act must be unanimously found in requiring them to identify a category of target. This would be in direct conflict with what s 101.6 says that the preparation and planning need not entail.”

Similarly in the present case, given the nature of the essential ingredients of a charge of conspiracy to do acts in preparation for a terrorist act, the existence of an agreement to do such acts does not depend on there being a specific terrorist act for which preparations were made or planning was undertaken. The fact that particulars were given of the bomb plot and the gas plot does not lead to there being different factual pathways to guilt and none of the plots was essential to the establishment of the applicant’s guilt in the present case. An extended unanimity direction of the type contended for by the applicant was not required.

The parties’ cases at trial and the live issues at the conclusion of the evidence

As noted above, another factor identified in Walsh as relevant in considering whether an extended unanimity direction might be required is the parties’ cases at trial and the live issues at the conclusion of the evidence.
On appeal, the applicant accepted that the existence of the bomb plot and the gas plot was not in issue at trial. His written submissions included: [10]

“[t]here was no dispute that Khaled, in particular, planned with others to cause a bomb to detonate on a plane in the course of a terrorist act and also planned to cause the dispersal of poisonous gas in the course of another terrorist act.”

What was in issue at the conclusion of the evidence in the present case was clearly articulated during the defence closing address as follows: [11]

“Now the primary issue here, members of the jury, is, putting it from [the applicant’s] perspective, that the prosecution charged with the duty of persuading you beyond reasonable doubt have failed to do so in the sense that at the end of the day you will not be satisfied that my client was a party to the conspiracy. You will, as you might recall, be totally satisfied that there was a conspiracy visible here of the kind alleged. You will be totally satisfied that each of Khaled Khayat and his brother Tarek, overseas, and this unknown person we have styled "the Controller" were a party to that conspiracy. As you know the Crown allege that Mahmoud Khayat was also a party to it and has sought to prove that to you. That is really the single issue. The singular issue for your consideration.”

Accordingly, by the conclusion of the evidence, the existence of a conspiratorial agreement between Khaled, Tarek and the Controller "of the kind alleged”, namely an agreement to do acts in preparation for or planning a terrorist act or acts, was not in issue. The “primary issue” was whether the prosecution had proved beyond reasonable doubt that the applicant was a party to that conspiratorial agreement.
As noted above at [48], in his submissions at one point the applicant framed the issue in dispute at trial as whether the applicant was “a party to the plan to commit the terrorist act or acts” and other submissions suggested that the prosecution case was that the applicant was party to a conspiracy to commit either the bomb plot or the gas plot or both. [12] These submissions appear to proceed on the basis that the charge in the applicant’s case was conspiracy to commit a terrorist act rather than conspiracy to do acts in preparation for, or planning, a terrorist act.
In addition, in the applicant’s submissions in reply, it was contended that:

"1. … [the prosecution] sought to prove that the appellant had agreed that an act or acts be done in preparation for or planning a terrorist act by proving that he had agreed to join the ‘bomb plot’ and agreed to join the ‘gas plot’. The jury would have understood that the prosecution case was that the appellant had agreed to participate in both plots. However, it was never suggested that, in order to return a verdict of guilty, the jury would have to be satisfied that the appellant joined both plots.

…

3. That is, the jury were instructed that it would be sufficient to find the appellant guilty that he agreed that an act or acts be done in preparation for or planning a terrorist act of using an improvised explosive device or bomb OR that the appellant agreed that an act or acts be done in preparation for or planning a terrorist act of using an improvised chemical dispersal device.

4. As a result, in the absence of an extended unanimity direction, the possibility exists that some members of the jury found the appellant guilty on the basis that he joined the ‘bomb plot’ (while having a reasonable doubt that he joined the ‘gas plot’) while other members of the jury may have found the appellant guilty on the basis that he joined the ‘gas plot’ (while having a reasonable doubt that he joined the ‘bomb plot’).”

The applicant’s oral submissions included submissions to a similar effect.
The requirement for unanimity is a practical question, not a technical one: AKB at [65] citing Magnus v R (2013) 41 VR 612; [2013] VSCA 163 at [46] and R v Mead [2002] 1 NZLR 594 at [17].
Although the relevant terrorist acts relied on by the prosecution included those referred to during the trial as the “bomb plot” and the “gas plot”, the “primary issue” on the defence case at the end of the evidence was whether the applicant joined, or became a party to, the conspiratorial agreement to do acts in preparation for a terrorist act, the existence of which between Khaled, Tarek and the Controller was not in issue. This primary issue went to the first essential ingredient of the charge and did not involve the jury being satisfied beyond reasonable doubt that the applicant had “joined” the bomb plot or the gas plot or both thereby becoming a party to a conspiracy to commit a terrorist act.
Accordingly, contrary to the applicant’s submissions, there was no need for the jury to be unanimous as to whether the applicant joined the bomb plot or the gas plot or both and, thus, there was no need for an extended unanimity direction as to those matters, in the terms proposed by the applicant or otherwise. Such a direction would not only fail to reflect the issues in the trial at the conclusion of the evidence, it would also fail to reflect the nature of the essential ingredients of a charge of conspiracy to do acts in preparation for, or planning, a terrorist act and the terms of s 101.6(2)(b) and (c), as explained above.

Conclusion on ground 1 and leave

Since the ground was fully argued and raised issues of general importance and there was some explanation for the delay, I would grant leave to bring the appeal out of time under r 3.5(5) of the Criminal Appeal Rules and leave to appeal under r 4.15 of the Criminal Appeal Rules. Nonetheless, for the reasons given, I would reject the first ground of appeal.

Ground 2

The second ground of appeal concerned whether the trial judge erred in allowing three alleged lies of the applicant in answers given during three interviews with police to be used as evidence of consciousness of guilt.
The trial judge allowed the Crown to submit during its closing address that the following statements amounted to lies evidencing consciousness of guilt: [13]

“[(b)] that the [applicant] did not actually know whether Khaled Khayat was in contact with Tarek (Interview #1 Q/A 367-368 and Interview #2 Q/A 536-543)

[(c)] that the [applicant] did not know Khaled Khayat had bought the welder machine until he came to his house on the day they collected it (Interview #1 Q/A 1072-1073 and Interview #2 Q/A 1520; 1659)

[(d)] that the [applicant] was “surprised” about Amer Khayat (one of the brothers of the [applicant] and Khaled Khayat) and Khaled Khayat coming past Cleveland Street on 15 July 2017 (Interview #3 Q/A 353; 564)”.

Submissions

Despite the fact that the applicant’s trial counsel did not rely on this argument before the trial judge, the applicant’s submission was that none of these statements (b), (c) and (d) should have been permitted to be used as lies evidencing consciousness of guilt because none was material or “explicable only on the basis that the truth would implicate the accused in the offence with which he is charged” and thus none was capable of supporting the inference that the applicant perceived that the truth was inconsistent with his innocence and would implicate him in the offence, citing Edwards v The Queen (1993) 178 CLR 193 (Edwards) at 209 and 210; [1993] HCA 63. The basis for these conclusions was submitted to be as follows.
As to (b), the statement that the applicant did not actually know whether Khaled was in contact with Tarek, the applicant having “that knowledge could not reasonably have been perceived by [the applicant] as inconsistent with his non-involvement in preparation for a terrorist act, with the consequence that the lie was not reasonably capable of being explicable only on the basis that the truth would implicate him”.
As to (c), the statement that the applicant did not know Khaled had bought the welder machine until he came to his house on the day they collected it, the applicant having “that knowledge could not reasonably have been perceived by [the applicant] as inconsistent with his non-involvement in preparation for a terrorist act, with the consequence that the lie was not reasonably capable of being explicable only on the basis that the truth would implicate him”.
As to (d), the statement that the applicant was “surprised” about Amer and Khaled coming past Cleveland Street on 15 July 2017, if the applicant knowing that Khaled was intending to come to the home of his wife’s parents with Amer before taking Amer to the airport, “that knowledge could not reasonably have been perceived by the [applicant] as inconsistent with his innocence of involvement in a bomb plot, with the consequence that the lie was not reasonably capable of being explicable only on the basis that the truth would implicate him”.
Finally, the applicant submitted that, since the asserted lies should not have been left to the jury as independent evidence of guilt, there was a serious miscarriage of justice.
The Crown commenced its submissions by summarising the principles in relation to lies as consciousness of guilt.
As to (b), the Crown submitted that there was evidence to demonstrate that the statement that the applicant did not know whether Khaled was in contact with Tarek was false. It was also submitted that, given the context of the interview including Tarek’s activities which were known to the applicant together with the applicant’s knowledge that authorities were interested in Tarek’s activities, there was a strong inference that the applicant knew that to confirm his knowledge that Khaled and Tarek were in contact would incriminate him. Thus, it was said that (b) was material and was correctly left to the jury to consider whether it amounted to consciousness of guilt with proper directions.

Consideration

The applicable general principles in relation to reliance on lies as consciousness of guilt were not in dispute on this appeal.
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence charged, that is it relates to a material issue, and if it was told by an accused in circumstances in which the explanation for the lie is that the accused knew that the truth would implicate the accused in the offence: Edwards at 210 (Deane, Dawson and Gaudron JJ).
Where those conditions are satisfied and a lie is relied on as consciousness of guilt, the lie should be precisely identified together with the circumstances and events which indicate that it constitutes an admission against interest: Edwards at 210-211.
The jury directions which should be given in respect of lies as consciousness of guilt are also addressed in Edwards at 211. In the present appeal, however, there was no challenge to the content of the Edwards direction given by the trial judge and it is not necessary to consider the jury direction actually given for the purpose of determining ground 2.
The applicant’s submissions focused on whether each asserted lie was material and capable of supporting the inference that the applicant perceived that the truth was inconsistent with his innocence or, in other words, that the asserted lie was explicable only on the basis that that the truth would implicate the applicant in the offence with which he was charged.
The conclusion that the asserted lie in each of statements (b), (c) and (d) was not material and was not explicable only on the basis that the truth would implicate the applicant was submitted to be based on the terms of the asserted lie itself, without reference being made to any of the other evidence. In oral submissions, [14] it was said in respect of each asserted lie that, even if the asserted lie was false, “so what?”, it did not “go to anything”.
More specifically, in respect of statement (b) that the applicant did not actually know whether Khaled was in contact with Tarek, the fact that those brothers were communicating was submitted to be “hardly world shattering” and it was asked “How does that implicate him in anything?” On this basis, it was contended that statement (b) was not material and could not support the conclusion that it was explicable only on the basis that that the truth would implicate the applicant in the offence with which he was charged and, consequently, it should not have been left to the jury to consider as evidence of consciousness of guilt. Essentially, the same submissions were made in respect of statements (c) and (d) on the same basis that even if those statements were false, that did not “go to anything” and would not tend to implicate him.

“… an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted”.

Thus, there is no general prohibition on the asserted lies being considered by the jury together with other evidence.
The present was not a case where the asserted lies were the only evidence against the applicant nor was any of them an indispensable link in a chain of evidence necessary to prove guilt. Rather, the situation was as described by Deane, Dawson and Gaudron JJ in Edwards at 210:

“But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.”

The impermissible form of reasoning referred to in Zheng was considered by McClellan CJ at CL in R v Lane [2011] NSWCCA 157; 221 A Crim R 309 (Lane). His Honour said at [14]:

“In Zheng Hunt CJ at CL, with whom Smart and Studdert JJ agreed, stated that if it was only possible to conclude that an accused had lied by finding that he or she committed the offence with which they have been charged the alleged lie could not be used as evidence of guilt. Of course a finding of guilt of the offence may have the consequence that an accused told a lie but because the lie could only be established by a finding of guilt it was not itself evidence of that guilt. This has been described as ‘circular reasoning’."

In addition, Simpson J (with Howie AJ agreeing) said in Lane at [60]:

“… Whether:

- a statement is false;

- a false statement is a deliberate lie;

-a deliberate lie relates to a material issue;

- a deliberate lie was told out of a realisation of guilt and a fear of the truth (and to avoid the consequences of that)

are all questions of fact, and within the province of the jury. The task of the trial judge, in determining whether the evidence may be used in this way, is to determine whether it would be capable of meeting those tests - that is, whether it would be open to the jury to find affirmatively that it did. If the evidence is capable of meeting those tests, then it is admissible, and, subject to discretionary considerations, or considerations raised by, for example, s 137 of the Evidence Act, the prosecution is entitled to have the evidence admitted as part of its circumstantial case. If admitted, it is the task of trial judge carefully to direct the jury in accordance with the four propositions stated in Edwards . The evaluation remains the task of the jury.”

In the present case, the conclusion that the applicant lied was not dependent on a finding that he committed the offence charged. Accordingly, it was open to the jury to consider the asserted lies in statements (b), (c) and (d) in light of other relevant evidence in determining whether those asserted lies were material and only explicable on the basis that the truth would implicate the applicant.
I accept the Crown’s submissions that there was other evidence which, if accepted by the jury, would support the conclusions that statements (b), (c) and (d) were each false, deliberate lies, related to a material issue and were told out a realisation of guilt and a fear of the truth (to adopt the wording of Simpson J’s summary).
As to statement (b) that the applicant did not actually know whether Khaled was in contact with Tarek, the other evidence included communications at earlier times between the applicant, Tarek and Khaled that could establish that the applicant was aware that Khaled was in contact with Tarek. Since the primary issue in the trial was whether the applicant was a party to the conspiracy between Khaled, Tarek and others to do acts in preparation for a terrorist act, the applicant’s knowledge of communications between two of the participants in that conspiracy was material in the relevant sense. In addition, the evidence which established the background to those communications known to the applicant was also significant. That evidence related to Tarek and his sons being in Syria fighting for Islamic State, Tarek sending both the applicant and Khaled sermons addressing the religious and political aims of Islamic State, including violent jihad, Tarek arranging for the DHL package containing the bomb to be sent following discussions with the applicant and Khaled and other discussions between Tarek and Khaled regarding the use of a timer and the explosive. In addition, there was evidence that the applicant knew that authorities were interested in Tarek’s activities at the time the applicant was interviewed. If this evidence were accepted by the jury, it would be well open to them to conclude that the lie was reasonably capable of being explicable only on the basis that the truth would implicate the applicant.
As to statement (c) that the applicant did not know Khaled had bought the welder machine until he came to his house on the day they collected it, the other evidence included the material summarised by the trial judge in Khayat No 6 at [14]-[15] as follows:

“14. The [applicant] had a photograph of a waybill on his telephone which indicated that a welder machine had been sent from Turkey to Abdul Karem Merhi (a cousin and brother-in-law of the accused) at his home in Wiley Park. It was reasonable to infer that he had that photograph since at least 17 April 2017 since he conducted searches of the “DHL” site that day, having been asked by Khaled Khayat to find out, from the tracking number on the waybill, the location of the package. The [applicant] learned from the site that deliveries of the package had already been attempted. On 18 April 2017 the [applicant] had telephoned DHL to find out where the package was and asked that it be re-delivered. On 19 April 2017 the [applicant] and Khaled Khayat visited Abdul Karem Merhi who gave them the package which had been delivered to that address.

15. There was also evidence from the [applicant] that Khaled Khayat had told him earlier that he had bought a welder machine on eBay or Gumtree and that this was the item that was to be delivered to Abdul Karem Merhi.”

Once again, if this evidence were accepted by the jury it would be well open to conclude that the lie was material to an issue in the proceeding, namely whether the applicant was a party to the conspiracy between Khaled, Tarek and others to do acts in preparation for a terrorist act, and that the lie was reasonably capable of being explicable only on the basis that the truth would implicate the applicant.

As to statement (d) that the applicant was “surprised” about Amer and Khaled coming past Cleveland Street on 15 July 2017, the other evidence included text messages between the applicant and Khaled almost four hours prior to Khaled and Amer arriving and other communications in which it was arranged with the applicant that Khaled would bring Amer to the Cleveland Street property on his way to the airport to see his aunt who had recently had heart surgery. Since taking Amer and the bomb to the airport was one of the acts said to be in preparation for a terrorist act which was the subject of the conspiracy between the applicant, Khaled and Tarek, if the jury accepted that evidence, it was well open to conclude this asserted lie was concerned with a circumstance or event connected with the offence charged and thus related to a material issue. Similarly, it was well open to conclude that the lie was reasonably capable of being explicable only on the basis that the truth would implicate the applicant.
In light of the evidence as a whole, there was more than adequate material to establish that it was open to the jury to conclude that each asserted lie was material in the relevant sense and was told out of a realisation of guilt and a fear of the truth. Accordingly, there was no error in allowing each of statements (b), (c) and (d) to be left to the jury as evidence of consciousness of guilt with directions in accordance with Edwards.
Since this ground of appeal lacked substantial merit both on an evidentiary level and on the level of principle, I would refuse leave to make an application for leave to appeal out of time under r 3.5(5) of the Criminal Appeal Rules and refuse leave under s 5(1)(b) of the Criminal Appeal Act, in respect of ground 2.

Proposed orders

Accordingly, I propose that the orders of the Court should be:
Grant leave under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Criminal Appeal Rules) to make the application for leave to appeal in respect of ground 1 out of time.
Grant leave to appeal under r 4.15 of the Criminal Appeal Rules in respect of ground 1.
Refuse leave under r 3.5(5) of the Criminal Appeal Rules to make the application for leave to appeal in respect of ground 2 out of time.
Refuse leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) in respect of ground 2.
Dismiss the appeal.
HUGGETT J: I agree with the orders proposed by Wright J and the additional observations of Harrison CJ at CL for the reasons their Honours have given.

**********

Endnotes

“Appellant’s Written Submissions” filed on 14 February 2025 (AWS), par 14. The trial judge’s judgment in this regard was R v Khayat (No 6) [2019] NSWSC 1318 (Khayat No 6).

AWS par 4.

AWS par 3.

Defence closing address at trial, Tcpt 11 September 2019, pp 1164(46) – 1165(6).

AWS par 8.

AWS par 11.

AWS par 12.

AKB at [63].

Commonwealth House of Representatives, Parliamentary Debates (Hansard), 2 November 2005 at 91.

AWS par 3.

Defence closing address at trial, Tcpt 11 September 2019, pp 1164(46) – 1165(6).

AWS pars 3, 4, 6, 8 and 11.

R v Khayat (No 6) [2019] NSWSC 1318 at [5] and [23].

Tcpt 5 May 2025, pp 6(29) – 7(10).

Khayat v R

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