Refusal of a Separate Trial - Reasons
31 On 14 October 2008 I came to the view, having applied the Middis principles to the circumstances revealed in the arguments, that the applicant had not discharged the onus of demonstrating that a separate trial was warranted. In particular, I was satisfied that no injustice would be occasioned to the applicant if the joint trial were maintained. I was positively satisfied, indeed, that the overall interests of justice, including the interests of the accused, required that he be tried jointly with the other remaining six accused. These are my reasons.
32 First, this is a conspiracy charge. The Crown alleges that each accused, including the applicant, was a participant in an agreement to do acts in preparation for a terrorist act or acts. It will often be the case, in a conspiracy trial, that different tasks will be undertaken by different conspirators. Some will have much to do, some will have less. It will often be the case that some alleged conspirators will join the plot later than others have done. This may happen very late in the piece, indeed perhaps not long before the plot is disrupted and apprehension occurs. In some cases, it may be difficult for the Crown to demonstrate beyond reasonable doubt that a late arrival was a participant in the criminal plan. For example, a jury may take the view that such a person has simply been innocently caught up in the rush of things. Much will depend on the jury's perception of that accused's own words and actions.
33 By way of contrast, in other cases, a particular conspirator may leave the conspiracy long before the criminal objective is attained. But, once again, his guilt or innocence will often fall to be determined by his own words or actions before he departed the scene.
34 In these instances, it is plainly desirable, as a general proposition, that all accused be tried together. Provided no positive injustice is occasioned to any particular individual, the dictates of every aspect of the interests of justice call out for, and demand, that there be a joint trial.
35 Secondly, the nature of the case sought to be made against the applicant here is essentially the same as that sought to be made against the others. He was a devout practising Muslim. His possession of extremist material tends, at least at first blush, to suggest that he held views of a similar kind to those said to have been embraced by the others in relation to the use of violent jihad to defend against the worldwide Muslim situation.
36 The applicant had associated socially with a number of the others. He appears to have been particularly close to Baladjam and this relationship brought him into contact with Jamal and possibly Elomar.
37 A number of the men were influenced in spiritual matters by the extremist Melbourne cleric Benbrika. Although there is no evidence to suggest that the applicant had any particular relationship with the Melbourne cleric, there is, as I have said, evidence to suggest that he may have held an extremist position. In matters of spiritual practice, the applicant was close in physical terms to a number of the other men: He was, for example, with some of them, or near them, on a close basis during the Ramadan period in November 2005.
38 Importantly, the case against him suggests that he too had an involvement, perhaps not an overly large one, in the acquisition of ammunition. This was particularly so in relation to the activities of Baladjam. In addition, he appears to have purchased ammunition in his own right, at least on one occasion. There is evidence that he had purchased hydrochloric acid, and that he was arguably in possession of containers of the same liquid at the time of his arrest. These are not necessarily sinister matters but allegations of a very similar nature are raised, in one form or another, against each of the accused.
39 There are, of course, in his case, differences of degree and timing in relation to the extent of the activities alleged to have been undertaken by him. This is not surprising, given his late arrival on the scene. But the fact that the case against him is essentially of the same character as that advanced against the others is by no means an unimportant factor operating in favour of the desirability of there being a joint trial.
40 Thirdly, the applicant's defence (if I may use that expression simply for the sake of convenience) will not be dissimilar to that likely to be raised by the others. This will be to assert that the Crown circumstantial case has simply "got it wrong". The inferences suggested by the Crown, the applicant may argue, will be more than offset by the competing inferences available.
41 Here was a group of young Muslim men deeply upset by unjust and discriminatory treatment aimed both at their international brethren and themselves, protesting, as it were, against this unfair behaviour. The accused will argue that any actions they may have taken did not have a terrorist intent (or at least the Crown will not have proved they did), and the entire case, it will no doubt be argued, represents a distorted overreaction by over-anxious authorities eager to secure a kill for their political masters. This is likely to be, as I say, the ultimate defence position relied on by all the accused.
42 Of course, there is a slight difference of emphasis in the position of the applicant. Because he arrived late on the scene, and because his involvement was more short-lived, he will be able to argue, as a preliminary point of defence, that he was not a participant in the conspiracy in any event. I do not imagine, however, that he will be alone in raising a preliminary argument of this kind. But his fallback position must be to the extent that he may have been swept along with the others, that the venture was not a criminal one and that he himself had no criminal intent. Once again, the fact that the applicant and the others will share, at least to some degree, the same defence position is a relevant factor supporting the notion of a joint trial.
43 I should interrupt these reasons to say something in a little more detail about the applicant's defence position. As I indicated at the outset of these reasons, Mr Turnbull had argued that a close and precise appraisal of the facts might well suggest to the tribunal of fact that there is the possibility of an overall explanation for the circumstances revealed by the evidence that is inconsistent with guilt.
44 In relation to the chemicals, for example, senior counsel pointed out that the applicant was a tradesman and painter. Possession of the particular chemicals might well be considered to be simply consistent with his occupation and trade.
45 In relation to the applicant's possession of a Mauser rifle, Mr Turnbull pointed out that the applicant was a licensed firearms holder. The rifle and its ammunition were held in accordance with the licence conditions. This may be considered, senior counsel argued, consistent with the rifle being used for purely recreational purposes.
46 In relation to the possession of extremist material, Mr Turnbull made a number of points. First, given the overall material on the applicant's computer, the amount of extremist material was quite small. Secondly, other persons had access to the computer. Thirdly, some of the material was in the Arabic language and his client did not read or speak Arabic.
47 There was no evidence captured on the listening devices (with one exception) to suggest that he had expressed violent views about infidels. So far as the use of a "code" was concerned, counsel suggested that the Crown was "going over the top" and that the reference on a number of occasions during his conversations to "vegetables" may well have been genuine and real. The purchase of the PVC material may have been, as well, quite innocent.
48 I have not traversed each and every submission by counsel that focused on this one point. Overall, however, two things may be said. First, these are really matters for the tribunal of fact. They may, indeed, be quite persuasive matters in the minds of the jury, but their resolution is not a matter for the trial judge.
49 Secondly, the nature of the defence, namely the pointing towards a variety of explanations consistent with innocence, is, as I have earlier indicated, precisely the task that will be undertaken by each of the joint accused. This will be proffered, in each individual case, against the framework and background of a very similar array of evidentiary material. There may be differences of emphasis, some may have a more difficult task than others, but the basic approach in each case will be relatively similar.
50 Indeed, the very simplicity of the applicant's defence case may well operate positively in his favour during a joint trial. His situation, as a late arrival, may be favourably contrasted with that of the others. Far from being prejudicial, such a comparison may well represent a positive forensic advantage to him.
51 The fourth and final matter relates to the important proposition that there will be, in a joint trial, highly prejudicial material before the jury that is not admissible against the applicant. This will be because of the co-conspirators' rule or otherwise. I am firmly of the view, however, that this submission cannot be accepted. I will explain why this is so.
52 In a number of earlier decisions I examined at length, and in considerable detail, the various ways in which at common law evidence could come before the jury in a conspiracy trial (see R v Baladjam [No 11], [No 19] and [No 38]). At common law, the relevant legal principles derived from Ahern v Regina (1988) 165 CLR 87. In doing so, I set to one side the additional ingredients or elements arising under the Criminal Code Act 1995 (Cth).
53 In R v Baladjam [No 19] especially, I set out and discussed a number of the recent authorities in relation to the admission of evidence in a criminal conspiracy case. These authoities essentially endorsed the matters derived from Ahern v The Queen. It may be helpful if I summarise the principles as follows: