Application of these principles to the present trial
98 I propose now to move from a theoretical consideration of the relevant principles, applicable generally to a conspiracy trial, to examine the way in which they should be applied to the controversy that has arisen in the present pre-trial application. Such an approach may best be understood against the background of an example. Let me take the example of the "maximum damage" statements made by Benbrika on 23 February 2005. It will be recalled that Hasan and Sharrouf travelled to Melbourne on that day and met with Benbrika at his home. There were discussions about the CD entitled "A Guide for the Mujahideen" and discussions about another book entitled "Martyrdom Operations". While at Benbrika's home, there was a discussion among those present about purchasing or ordering laboratory equipment from Haines. This is relied on by the Crown as an overt act referable to the alleged conspiracy. In that regard, the discussion correlated with a handwritten list of an order which was ultimately placed with Haines on 2 June 2005. The order was placed by way of a FAX sent to Haines from a pharmacy at Hoppers Crossing, Victoria. A handwritten list of these items, with connections to both Hasan and Joud, was found at Joud's premises during the execution of a search warrant on 22 June 2005. There was also a connection between the phone used in a follow up call and Hasan. A receipt for this telephone was located at Hasan's premises on 27 June 2005 during the execution of a search warrant. The Crown alleged that the telephone service was later shown to be used by Hasan in making enquiries which was said to be in furtherance of the conspiracy. Finally, the address given for the telephone service, when it was initiated, was at Hopper Crossing, being an address at the same street and suburb as Joud's premises.
99 I will, for the purposes of this analysis, assume that the Crown case is capable of showing, in a general way, that the accused, or some of them, were receiving advice, spiritual and otherwise, from Benbrika. I will also assume that the evidence is capable, again in a general sense, of suggesting that the Melbourne group were supplying at least some of the Sydney accused with extremist material or material expressing shared Islam views. For the moment, I will also assume that this includes material or information of the kind found at Joud's premises.
100 I return now to the "maximum damage" conversation. There is no need to repeat it. It is set out in paragraph (e) at the foot of page 4 of this judgment. I shall refer to it as "the conversation".
101 Mr Dalton has argued that the conversation, if it is admissible at all, is only admissible against Sharrouf to show his state of mind. Mr Dalton argued, firstly, that not every "extremist" discussion between Benbrika and Sharrouf would be relevant to show a state of mind or an intention linked to terrorist activities. If the discussion, for example, amounted to no more than a group of men expressing political views about the presence of the Americans in Iraq or Iran, Mr Dalton argued that it would not be relevant at all.
102 Secondly, assuming that the conversation is relevant as showing Sharrouf's state of mind, Mr Dalton argued that the particular conversation would not be relevant and admissible against the other conspirators. It would not be admissible against, for example, Mr Elomar. This would be so unless the co-conspirators rule had application. Mr Dalton argued that it could not apply for three reasons. First, Benbrika was not a co-conspirator. Secondly, the conversation itself could not be described as an act in furtherance of the conspiracy. Thirdly, Mr Sharrouf's state of mind could not be used as evidence of an "admission" by the other men of their state of mind.
103 Finally, Mr Dalton argued that it could not be admissible against the other conspirators to show the nature and scope of the conspiracy because it was not an act done in furtherance, or in pursuance of, the conspiracy. This was the "qualification", argued by Mr Dalton. In his final written submissions, counsel argued that the evidence of the conversation with Benbrika was not a conversation "in relation to Sharrouf's advancement of the crime" and therefore, it could not be evidence relevant to the existence and scope of the conspiracy. It could not be evidence of the state of mind of the other alleged co-conspirators because, to use it in that way, would be to use it a hearsay manner and that would be prohibited.
104 I am unable to agree with Mr Dalton's arguments for a number of reasons.
105 In the first place, while the conversation may tell us something about Benbrika, it is not, in terms of the Evidence Act, an admission because Benbrika is not a defendant in the trial. Secondly, it may be, as Mr Dalton has argued, that the conversation is relevant to Sharrouf's state of mind. For that matter, it may also be relevant to Hasan's state of mind. Arguably, Hasan was present in the room during this part of the conversation. On the other hand, there is no indication from the conversation itself to indicate that either Sharrouf or Hasan endorsed, adopted, or accepted the views expressed by Benbrika in the conversation. In regard to the state of mind of persons other than Benbrika present in the room, the conversation can be no more than a circumstantial fact bearing upon their respective states of mind, if that be relevant. Of itself, it would not prove a state of mind and the Crown does not necessarily rely upon it for that purpose.
106 Indeed, Mr Dalton's approach is, in one sense, an illustration of "placing the cart before the horse". Counsel says the analysis should start at the beginning by asking - is the conversation relevant to Sharrouf? I would respectfully suggest such an approach may tend to lead in the wrong direction.
107 The correct starting point is to examine the evidence to determine whether, if it were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. The test of relevance will extend not only to the elements of the offence in the light of the plea but to facts that are themselves relevant to the facts in issue. (Smith v The Queen [2001] 206 CLR 650 at (6) per Gleeson CJ, Gaudron, Gummow and Hayne JJ). This test is often best approached by seeking to identify the purpose for which the tender is sought by the Crown, or the basis on which the Crown says it will advance the Crown case. The Crown wishes to tender evidence of the conversation as relevant to prove the existence and nature of the conspiracy, and as relevant to the accuseds' intention in undertaking activities in furtherance of the conspiracy. The Crown wishes to argue that these activities took place in the context of the accused generally receiving advice and inspiration from Benbrika, he being a person who supported and promoted violent jihad as part of his preachings in relation to the theology of Islam.
108 Further, the Crown argues that these activities were undertaken in the context where there was a sharing between Benbrika, and others who reflected his view, of religious material, excluding extremist material. Indeed, the Crown will endeavour to prove that, at least in one instance, there was a sharing of information contained in instructional material held by one of the Melbourne group. Importantly, part of the context, according to the Crown case, is that there is evidence of actual facilitation where some of the Melbourne group assisted the Sydney group in relation to attempts to obtain large quantities of laboratory equipment. Finally, the Crown case is that, if it be the defence position that the various actions alleged to be in furtherance of the conspiracy were actions taken on an innocent basis, the Melbourne evidence (including the conversation) is relevant to rebut this as a hypothesis consistent with innocence, and relevant to support the position contended for by the Crown.
109 Applying the Evidence Act test of relevance to the conversation, in the light of the manner in which the Crown will contend that the Melbourne evidence generally may be used in the trial, it will be seen that it is the relationship itself between Benbrika and the accused that brings about a situation where the conversation may properly be regarded as relevant. The relationship is one evidenced by the duration, frequency and content of the association between Benbrika and many of the accused on the other. It is that relationship, being one of religious and spiritual guidance, that makes relevant the fundamentalist attitudes expressed both publicly and privately by Benbrika. The relationship is one of spiritual guidance in connection with his views on the dictates of Islam. To Benbrika, jihad is a fundamental precept of his religion. This he makes clear in the interview in the 7.30 Report on the ABC in August 2005. He is an admirer and supported of Osama bin Laden. He does not tolerate other religions. Benbrika is what sections of the media have loosely described as "a fire brand cleric". Tacitly, he appears to approve of the September 11 destruction of the Twin Towers and the loss of American civilian lives. He is reluctant to ascribe blame to Al-Quaeda, but if they were the perpetrators, their actions were justified.
110 It is clear that the relationship does not prove by itself the existence and scope of the alleged conspiracy. Nor does the conversation. The conversation, and indeed, the relationship, are but part of an overall circumstantial case that includes the actions of the Sydney accused themselves in ordering laboratory equipment, ammunition and other materials arguably connected with preparation for a terrorist act or acts. It includes as well their possession of extremist material supporting jihad. The nature of the association, in my opinion, is relevant as a circumstantial fact, in proof of the existence and scope of the conspiracy. The accused are men with strong religious views about their faith. They hold strong views about events relating to Muslims in the Middle East and elsewhere. They are disconcerted by the attention paid to them by police and other authorities. They look to Benbrika as a religious leader.
111 The conversation may also be relevant (although I make no decision at this stage) as part of an act done in furtherance of the conspiracy. The conversation, after all, occurred as part of a wider discussion, which included aspects of religious guidance in the context of Islamic history. It occurred in the context of references to Islamic history including military action, warfare and martyrdom. It included the discussions referrable to a plan to organise an order for the supply to the Sydney accused of a large volume of laboratory equipment. The ordering of the laboratory equipment is alleged by the Crown to be an overt act within the conspiracy. Indeed, the general relevance of evidence relating to that act (including discussion about it) is, subject to some arguments about exclusion under s 137, not seriously put in issue by the accused. Whether the conversation might be relevant in this further way, I shall put to one side. The application of the co-conspirator's rule will normally be considered at the close of the Crown case.
112 I return, however, to the primary basis on which the evidence of the conversation is sought to be adduced by the Crown. It is, as I have said, in the context of the relationship between Benbrika and the Sydney accused. It is in the context of his providing spiritual guidance over an extended period of time. The fact that the spiritual guidance is, on a number of occasions, focused on guidance about religious matters that do not extend to the waging of jihad is beside the point. It is the nature of the relationship that makes the evidence of Benbrika's public and private espousal of violent jihad relevant to the facts in issue, and especially to the existence and scope of the conspiracy.
113 The conversation is not an admission by Sharrouf, Hasan or anyone else present on the February occasion. In so far as the evidence might be capable of reflecting on the state of mind of Hasan and Sharrouf, it is not tendered at this stage as an admission against them or, for that matter, against any of the other men. As to the state of mind of Sharrouf and Hasan, it is no more than a piece of circumstantial evidence. Indeed, as presently minded, I would think that the admission of the evidence might properly be accompanied by a direction indicating that it is not to be relied upon as an admission and that it is not being tendered for any hearsay purpose. If s 60 of the Evidence Act requires that a limitation be imposed on the tender of the evidence, that can be achieved pursuant to s 136 of the Evidence Act. The question of directions, however, is essentially one for the future. I intend to indicate no more than that directions of the kinds I have in have mentioned (and others as well) may well be appropriate when further consideration is given to the issue.
114 For the moment, I am content to state that, in my opinion, the evidence is at least relevant as going to proof of the existence and scope of the alleged conspiracy in the way I have indicated. It needs to be borne in mind that the essential nature of the Crown case suggests that Benbrika, Joud (and perhaps others in Melbourne) were facilitators, in a general sense, of the objects of the Sydney conspiracy. One aspect of Benbrika's position was to facilitate it especially by the provision of a wide range of spiritual guidance and inspiration. The Melbourne men provided material to the Sydney group and, at least in one instance, it is to be inferred, they provided or passed on instructional material or information (the Joud material) to them. The Crown case, as I have said, suggests that an appropriate inference may be drawn from Benbrika's many communications with Sharrouf, his visits to Sydney, their visits to him, his giving of sermons and religious instructions (both publicly and privately) to them, that his extremist views were of value to the Sydney conspiracy. In this latter regard, the Crown case, in connection with the Melbourne men, likens the identified aspects of the Melbourne link to the extremist and instructional material found and seized from the Sydney men themselves. In that sense, it is material which points, at least, to the existence of the alleged conspiracy but particularly to its connection with violent extremism and violent jihad. The conversation presently under discussion fits into that category.
115 I appreciate that Ms Yehia, for example, has argued that, when one has regards to its precise context, the conversation does not have the weight sought to be attributed to it by the Crown. Ms Yehia argued that the outburst, if it might be so described, was in relation to the consequences of breaching Sharia law in an Islamic state. It was not in relation to committing an act of terrorism or any violence on Australian soil, or in a foreign country. The Crown, of course, argues that the conversation must be seen in its wider context. This includes the context that there was a range of spiritual matters being discussed during the evening, and there were extensive discussions about the ordering of laboratory equipment from Haines. These are each valid arguments for consideration but they really raise, in my opinion, a jury question. The question of the weight to be attached to the evidence, and whether it has any significance at all in an evaluation of the overall Crown circumstantial case is entirely a matter for the jury. That consideration does not have a bearing on its relevance nor does it impact upon its admissibility.
116 Messrs Waterstreet and Lange argued that much of the Melbourne evidence is being relied upon by the Crown as tendency evidence. In my opinion, it cannot be regarded as tendency evidence. Section 97 of the Evidence Act has no application at all. The "relationship" between Benbrika and the Sydney men (providing spiritual guidance and inspiration) makes relevant to the facts in issue in the trial the cleric's extremist/fundamentalist views. The "relationship" between some of the Melbourne men and a number of the Sydney accused (facilitating acts in furtherance of the conspiracy - the Haines order; and participating in an act of furtherance - Curranyalpa) flesh out and circumstantially enliven the actions of the Sydney accused. The Melbourne evidence is not evidence of previous conduct or of a previous state of mind (McIlwaine v Ramsay Food Packaging Pty Limited [2006] FCA 828). Rather, it is directly circumstantial in proof of actions which themselves may in turn point to the existence of a conspiracy, its nature and scope, and perhaps to its implementation by the accused.
117 The point needs also to be emphasised that evidence of the conversation (if I may return to that example) is relevant and admissible against all of the accused and not just the person or persons present when it occurred. It is relevant to the nature and scope of the conspiracy. The point is made clear by the authorities I have discussed earlier in these reasons. It is, in terms of the Evidence Act, provisionally relevant, provided there is subsequent evidence of a common purpose and evidence of the participation of each of those accused in the conspiracy. The conversation is "provisionally relevant" against each of the accused because it has the capacity, along with the other material in the Crown case, to give context and colour to the activities of each of the accused. It has the capacity to impact upon the question as to whether those activities were innocent day-to-day activities, or whether they were infected with fundamentalist notions. The evidence will cease to have relevance against a particular accused if there is no evidence of participation by that person, or if the jury is not satisfied that any such activity is referable to the agreement alleged by the Crown.
118 One further point needs to be made. The relevance of the conversation against a particular accused does not depend upon the frequency of contact between Benbrika and that accused. A few examples will make the point. Perhaps at the furthest extreme is the situation of Mr Mulahalilovic. I approach this matter with caution because I have not heard any separate submissions from Mr Turnbull on his client's behalf. It appears, however, from a preliminary reading of the Crown case, that Mulahalilovic came to the alleged conspiracy late in the piece. He does not appear to have had much, if any, contact with Benbrika. In my opinion, however, the conversation would be both relevant and admissible in the case against Mulahalilovic but limited, for the present, to being a piece of circumstantial evidence in proof of the existence and scope of the conspiracy. If there were subsequent evidence of Mulahalilovic's participation in acts that may be said to be in furtherance of the conspiracy, the Benbrika conversation may be used by the jury, along with other evidence, as relevant to its understanding as to whether a conspiracy existed and as to whether Mr Mulahalilovic's actions were referable to that conspiracy and within its scope.
119 A second example is the situation of Mr Jamal: He, by way of contrast with Mulahalilovic, had a reasonable level of connection with Benbrika. There is evidence to show, for example, that Benbrika valued Jamal's services in relation to his computer prowess; and that Jamal sought spiritual guidance from Benbrika in relation to aspects of strict Islamic law. On one occasion, Jamal brought Benbrika from Melbourne to Sydney to enable the cleric to give lessons to Sydney followers. This evidence is contained in the telephone intercepts under debate in the present application.
120 The "maximum damage" conversation would be relevant against Jamal, in the same way as it is against Mulahalilovic. As I have endeavoured to explain, its relevance arises notwithstanding that Jamal was not present when the conversation occurred. Equally, its relevance is not dispelled by any analysis of the number of contacts between Jamal and Benbrika, even though there were a number of those. The telephone intercepts involving Jamal would be relevant against him, not to constitute any admission on his part, but to show as a circumstantial fact that he (and no doubt others) did value Benbrika as a religious guide and inspiration. That fact, if it were circumstantially established, would reinforce the relevance of the February 2005 conversation as admissible against him, as it is against the other alleged conspirators.
121 The telephone intercepts between Jamal and Benbrika are themselves relevant and admissible against the other conspirators. Once again, they are not relevant because they are an admission by Jamal, but because they are relevant to the existence and scope of the conspiracy.
122 These comments concerning Jamal apply with equal, if not greater, force to the position of Khaled Cheikho and to the submissions made on his behalf. His involvement with Benbrika was perhaps less than that of Jamal, but it was not insubstantial. Moreover, he was at a camping trip with three of the Melbourne men, including Joud, who was closely involved with the Haines order. There are many facts, some for and some against, which may strengthen or weaken the level of association between a particular accused and Benbrika and his Melbourne associates. Those facts will no doubt be relevant as matters of jury address to test the strength or weakness of the Crown circumstantial case against each accused. I have no doubt that there will be vigorous debate in the trial about matters of that kind. Arguments about the strength or weakness of individual circumstantial facts, however, do not impair the anterior question of relevance and admissibility of the Melbourne evidence, including telephone calls and association relevant to the existence of the Sydney/Melbourne relationship.
123 It will be apparent from my remarks that I accept there is evidence capable of showing that many of the accused did look to Benbrika as a religious guide and valued the inspiration of his spiritual leadership. This appears from the listening devices and the telephone intercepts. It appears from other factual material which I have already touched upon. It appears as well from the wider chronology I will shortly set out in these reasons when examining in a little more detail the listening device and telephone intercept material.
124 For example, if one turns to Exhibit "F", it will be seen to contain a considerable number of conversations between some of the accused. In those conversations, the accused are speaking to one another about Benbrika or his attendances in Sydney. These conversations provide but one firm basis for a finding that Benbrika was used by the Sydney men as a source of guidance and inspiration. In that regard, it is not necessary to identify each illustration of that kind as involving Benbrika in providing guidance as to "terrorist activities", that is, activities involving the destruction of people or properties. It is sufficient, in my opinion, that the evidence shows the general provision of religious guidance and instruction in relation to a fundamentalist or strict approach to the application of Sharia law to Muslims.
125 It will also be apparent from these reasons that I accept that there was a level of sharing of material between Melbourne and Sydney. Many of the conversations show this to be so. The sharing related not only to hard copy publications, but extended to Internet communication and the possibility of sharing facilities such as Paltalk facilities and the like.
126 As Ms Yehia has argued, it is true that the evidence does not directly demonstrate, with some possible exceptions, that the shared material was necessarily extremist (i.e. terrorist related) or instructional. As Ms Yehia pointed out, sometimes it is not possible to know precisely the nature of the material being shared or being discussed as potentially available for sharing. But, once again, the sharing of material, whether fundamentalist or not, is proffered as a circumstantial fact in the Crown case. The prosecution will argue, no doubt, that it was unlikely the men were sharing information about sporting events or cooking recipes. The defence will respond, no doubt, that this is not good enough and that the facts in this regard may lead nowhere in the Crown case. These differences of approach, are, once again, matters of jury address. They do not impinge, in my view, upon relevance and admissibility. In any event, there is clearly a body of evidence that suggests that the sharing of material between the Sydney and Melbourne men often had a fundamentalist character. The material found in the possession of each of the accused is also of that character. In addition, there is ample evidence of a commonality of such material held by a number of the accused. Consequently, the nature of the relationship between the Melbourne group and the Sydney men is capable of providing a relevant context against which to judge the facts in issue in the trial.
127 Finally, it will be apparent that in analysing the relevance and admissibility of the conversation, I have in effect rejected Mr Dalton's suggested qualification of the general principles. In addition, I am satisfied that the conversation does not, for the reasons I have given, constitute an admission nor is it being tendered for a hearsay purpose. It is not tendency evidence. It is simply a circumstantial fact which, together with other material, may be assessed by the jury in its overall evaluation of the Crown case in determining whether the Crown has proved the existence of the alleged agreement beyond reasonable doubt.