1 HIS HONOUR: On 28 May 2008 I gave a preliminary decision (R v Baladjam [No 19] in relation to the defence application to exclude "Melbourne evidence"). This was an application that had been brought principally by Mr Dalton SC on behalf of Mr Elomar, although it was supported by Ms Yehia, Mr Buscombe and Mr Waterstreet on behalf of their clients. Overall, it was supported by all accused.
2 In the ultimate, I allowed much of the Melbourne evidence, although I considered that, at trial, pseudonyms might be used to avoid prejudice and directions might be given to limit the use of certain aspects of the evidence where that course was warranted.
3 During the course of the application, there had been an important preliminary argument raised by Mr Dalton. Senior counsel argued that evidence of a statement or act by one person could not be admitted against the accused generally to prove the existence and nature of the conspiracy unless that evidence was itself evidence of a statement or act done pursuant to the conspiracy, or at least in connection with it. Mr Dalton had argued that this conclusion emerged from a consideration of ss 57(2) and 76(1)(c) of the Evidence Act 1995. A number of the conversations scrutinised for that purpose of the argument involved statements by one Benbrika, a Melbourne man, who was not alleged to be a co-conspirator in relation to the conspiracy charged against the present defendants.
4 As my judgment makes clear, I was unable to agree with the submissions advanced by Mr Dalton in relation to his preliminary point. It will be helpful to reproduce in this decision some parts of my earlier decision. I set out below paras 107 to 114 of that decision.
5 Paragraphs 107-114 of R v Baladjam [No 19]:
"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.
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.
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.
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.
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.
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.
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.
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."