(g) Para 285 states that the cleric Benbrika travelled from Melbourne to Sydney on 31 October 2005. Hasan arranged for Moustafa Cheikho to collect Benbrika from the airport and to take him to Hasan's house. Sharrouf and Moustafa Cheikho met Benbrika and collected him from the airport.
47 There is no suggestion in the Crown case statement that Jamal met Benbrika that day. There is, however, a mention that his car was observed being driven into the car park at the rear of the Lakemba Arcade at about 6.16pm on 1 November 2005. Jamal and another man left in a second vehicle travelling to Mulahalilovic's residence and arriving at 6.38pm. They left shortly after 7pm and returned to the car park at Lakemba. At 1.08am the next morning Mulahalilovic and Baladjam drove in a motor vehicle from Mulahalilovic's premises to the car park at the rear of the Lakemba Arcade. This vehicle was still parked there at 7.33am the next morning. The suggestion is that Jamal's vehicle was also left in the car park overnight. The CCS (footnote 553) "suggests it is open to infer that Jamal, Mulahalilovic and Baladjam spent the remainder of the night at the ASJA Prayer Hall in the Lakemba Arcade".
48 Mr Scragg argued that it was important from the point of view of his client's defence to establish that Jamal was not one of the people who met Benbrika at the airport. There is no suggestion in the Crown case, however, that he did so, and there is no material in Exhibits "B(a)" and "B(b)" bearing on this issue. There are a number of surveillance documents and statements available in support of the inference suggested by the Crown as to whether Jamal spent the remainder of the night at the Prayer Hall. There are no agency surveillance documents suggesting that Jamal met Benbrika at the airport. All relevant material appears to have been disclosed or otherwise made available.
49 This brief summary does, perhaps, less than justice to the considerable effort involved in the preparation of Exhibits "K" and "L". The arguments in relation to the public interest immunity claim were adjourned on 24 June 2008 to enable the preparation of the relevant material after the making of appropriate enquiries. The arguments resumed on Thursday, 3 July 2008, when final submissions were made. Subject to the Court being satisfied as to the existence of a valid public interest immunity claim, Ms Yehia made no further submissions beyond repeating those that had been made on the opening day of the argument. Mr Scragg, however, was less satisfied with the position revealed by Exhibit "L". Notwithstanding the detail which had been provided to him, Mr Scragg maintained that the confidential documents should be produced to enable scrutiny of several areas of unsatisfied legitimate forensic purpose. Mr Scragg produced a folder (Exhibit 2) which contained a number of authorities on which he placed reliance. It included as well a small bundle called "Disclosure Material" from the Australian Federal Police. Thirdly, there was a document called "Surveillance Summary" for the period from 8 October to 8 November 2005. Finally, there were surveillance observations specifically related to Mr Jamal in the relevant period. (The latter had been served on Mr Jamal's lawyers in late May 2008).
50 As I understand it, the third document I have referred to was part of a more extensive document known as a "master surveillance summary". This had been prepared by the Crown to draw together all the surveillance relevant to all of the accused. It was intended to form the basis of either facts to be agreed, or material to be led at the trial of surveillance observations.
51 In his additional submissions, Mr Scragg took the Court firstly to the AFP case notes. Mr Scragg's first focus was on three individuals, Dannaoui, Khaled Vetter and Talal Hamdan. These persons were not named as conspirators but were suggested as being associated with the conspiracy, perhaps helping the conspirators in some way, particularly in the latter period of the alleged conspiracy. Mr Scragg said that he was seeking surveillance records for the one month period in relation to these persons. They were all persons, Mr Scragg argued, who were being targeted and investigated in relation to the allegations involving his client. Their premises were searched, but in the end they were not charged.
52 Secondly, Mr Scragg made submissions concerning one particular AFP case note dated 9 December 2005. I will set out the whole of the first two paragraphs of this case note. It was authored by Federal Agent Byron Morley.
"BACKGROUND
On 8 November 2005, the resolution of Operation Pendennis/Eden occurred resulting in the arrest and charging of numerous persons in both New South Wales and Victoria for terrorist related offences. On 8 November 2005 Jamal was arrested and interviewed but was subsequently released, due to insufficient evidence.
Jamal is known to be associated with those arrested on 8 November 2005 and also remains under investigation for suspected support to Saleh Jamal (Operation Huntley/Fenders).
Since that time, further investigations have taken place. These investigations have established that Jamal was one of the persons who attended a commercial premises, namely Auto King, at Punchbowl, NSW, with Abdul Rakib Hasan and ordered 200 litres of sulphuric acid. Hasan is currently in custody charged with conspiracy to commit acts in preparation for a terrorist act. This order of sulphuric acid forms part of that conspiracy. It will be alleged that Hasan met with other members of the group while a terrorist act was being planned."
53 The case note then details certain items that were found at Jamal's place during a search on 9 December 2005 and indicates that "the AFP intend to locate, arrest and charge Jamal".
54 Mr Scragg argued that this case note provides the basis for a legitimate forensic purpose in his client's favour. It is clearly on the cards, he argued, that, in relation to all material that was in the possession of the investigating agencies at that time, it would include material that could assist the accused in his defence at trial. Mr Scragg submitted that his client should have access to all surveillance material, as it is relevant to the decision taken by the investigating agencies to release his client without charge on 8 November. Mr Scragg argued that the mention of "insufficient evidence" was enough to make it "on the cards" that there would be exculpatory material in the hands of ASIO and the AFP. Mr Scragg submitted that if there were insufficient inculpatory material to charge him with an offence on 8 November, it must follow, as a matter of logic, that it would be on the cards that there was likely to be exculpatory material.
55 Mr Scragg, as I have mentioned, placed reliance on three authorities. They were State Drug Crime Commission of New South Wales v Chapman (1987) 12 NSWLR 447 at 451 per Allen J (this case was cited with approval by the New South Wales Court of Criminal Appeal in R v Taylor (2007) 169 A Crim R at 543.). Secondly, there was the decision of the South Australian Court of Criminal Appeal in R v Gillard and Preston (1999) 76 SASR 76 at 86-88 per Duggan J; and at 93 per Bleby J. The third decision was that of Ormiston J in R v Harris, an unreported decision of 3 June 1985 (especially at 343-344). These were all cases relating to telecommunication intercepts. By analogy, Mr Scragg argued, they should be applied to the surveillance material presently under discussion.
56 In general terms, Mr Williams had not raised any argument during the initial hearing to suggest that there was any absence of legitimate forensic purpose. Indeed, the approach taken by the Commonwealth, sensible and helpful as plainly it was, had been to assume the legitimacy of the claim represented by the paragraphs in the subpoenas, and to demonstrate against that background that there was no material in the captured documents that materially assisted the defence case. Secondly, the Commonwealth maintained that, so far as diligent research could ascertain, all relevant surveillance material had in fact been given to the accused. In relation to Mr Scragg's reply argument, however, Mr Williams took issue with the existence of the asserted legitimate forensic purpose. This was particularly so in relation to the AFP case note that mentioned that, at one point of time, there had been "insufficient evidence" against Jamal. In relation to the arguments concerning Mr Dannaoui, Hamdan and Vetter, senior counsel for the Commonwealth identified a considerable amount of surveillance material that had already been either disclosed, or provided as part of the brief. Mr Williams conceded, however, that there may be some other material available in relation to these three men. Since no precision has been shown to identify anything that might be described as a legitimate forensic purpose, however, the lengthy analysis which has thus far been undertaken had not necessarily captured that material.