Question 3 - Should the evidence be excluded against all accused (the argument that Moustafa Cheikho was a resource to the conspiracy)
86 I have earlier set out a summary of the submissions made by counsel in relation to this question. Both Mr Button SC and Ms Yehia made a detailed comparison between the training Kwon received at the LeT camp in 2001 and the activities of the two groups involved in the New South Wales camping trips in 2005. The point of this comparison, and other comparisons made in argument, was to provide a foundation for the submission that the Pakistan training received by Abu Asad, assuming it to have been similar to Kwon's training, was in no way similar to any training or any activities of the accused in the period between May 2004 and November 2005. For example, it was said there was no evidence that the Pakistan training involved the manufacture or use of IED's, or that trainees were prepared for urban terrorism. Comparisons were made between preparation for guerrilla warfare on the one hand, and shooting or camping trips in the Australian bush, on the other.
87 The Crown did not accept the validity of these comparisons. It pointed to a wide range of material and items found in the accused's possession, and to the material on the computers etc. The Crown made an equally detailed analysis and suggested that there was, in fact, a similarity or cross-over between the LeT training and the actions of all the accused from time to time.
88 In my opinion, the third question can, however, be more readily determined without finally resolving the issues arising from the detailed comparison. Although I have found these comparisons useful, there are, as I said earlier, points to be made on both sides. The final position, based on this argument, is not clear cut. The ultimate determination, however, focuses upon this question - is the evidence in the trial generally capable of showing that Moustafa Cheikho's alleged training in Pakistan was a resource he brought to the conspiracy? This is, as it were, the central question on this point.
89 The answer to this question must be, in my opinion, that it is not capable of establishing the position argued for by the Crown. Let me say, at the outset, that I accept entirely that, in a given factual situation relating to a conspiracy, there may be evidence to support the proposition that the training and expertise of a particular individual, even though it may have occurred many years before the formation of the conspiracy, has been deliberately brought to that conspiracy as a resource. One has only to contemplate the example of a conspiracy to plan the detonation of a nuclear explosion in an urban situation, where one of the conspirators is alleged to be a scientist with specific training and capacity in the area of nuclear science. For evidence of the training of that individual to be admissible as a resource brought to the conspiracy, there would need to be evidence that the training was necessary for the conspiracy; perhaps that the training was known at least to one, or to more than one, of the conspirators; and that the resource was plainly intended to be used in furtherance of the conspiracy. This would be so even if the conspiracy were to be halted before the actual event took place.
90 My examination of the Crown Case Statement, and the evidence likely to be adduced, taken at its highest, leads me to conclude the material in the Crown case does not reach an appropriate level so as to meet these criteria. In particular, there does not appear to be any evidence to suggest that Moustafa Cheikho's experience and expertise, such as it may have been, was in fact used or relied upon throughout the period of the alleged conspiracy. There is no direct evidence to suggest that any of the conspirators knew of, or adverted to, Moustafa Cheikho's alleged training in Pakistan in 2001. True it is that his fellow accused would have been unlikely to have been ignorant of his earlier training but there is, as I have said, no direct evidence of such knowledge. Finally, it does not appear that his training at the LeT camp, if that in fact occurred, was necessary, in any real sense, for any aspect of the furtherance of the conspiracy. Many of the accused, according to the Crown case, possessed instructional material that would have been of far greater use and practical application than anything Moustafa Cheikho had to offer. In addition, many of the accused, according to the Crown case, possessed religious and extremist material. This too would have motivated their actions far more readily than anything Moustafa Cheikho had to offer.
91 I consider that the position in this trial can be plainly distinguished from the Melbourne trial (R v Benbrika) in a number of obvious respects. First, the charge there was a significantly different one from the present conspiracy charge. Secondly, the evidence sought to be relied upon was of a fundamentally different nature, although admittedly it involved training. For example, the person who had undergone training in Afghanistan had been asked whether or not he was prepared to become a suicide bomber. Thirdly, although it is not clear from the decision, it appears that the basis of admission of the evidence was that the Afghanistan experience "gave him credentials and made him attractive to Benbrika and the other brothers to have as a member of the organisation". This denotes knowledge on the part of Benbrika and the others as to the fact of training and its details. There may be other points of distinction as well. It is unnecessary to pursue these in the light of the clear view I have come to that Bongiorno J's ruling is not applicable to the situation with which I am dealing.
92 The Crown argued that support for its position was to be found in my own decision in R v Lodhi [2006] NSWSC 461 at [24]. In that case an issue arose as to the admissibility of evidence of the association between one Willie Brigette and the appellant in proof of the fault elements of a range of offences contrary to s 101 of the Criminal Code with which the appellant had been charged. That aspect of my decision was upheld by the Court of Criminal Appeal in R v Lodhi [2007] NSWCCA 360 at 131. The relevant passage is as follows: -
"It seems to me that his Honour's conclusion was correct. The evidence objected to was more than mere association. The knowledge and intent of the appellant in collecting documents or seeking information or possessing the documents specified in the fourth count was to be judged from all the surrounding circumstances. Those circumstances included that he was at all times in frequent and secret communication with a terrorist trained in Pakistan…it seems to me that the evidence was capable of establishing that the appellant had a secret relationship with Brigette during the time immediately before he committed the acts on which the charges were based. Proof of the relationship explained why he engaged in a series of acts none of which was on its face necessarily one of criminal intent".
93 The position in the present matter is, to my mind, quite different. It is not the situation that there was a "secret relationship" between Moustafa Cheikho and the other conspirators shortly before the time of the coming into existence of the conspiracy, throughout its term, or at any time. It was the secrecy of the relationship between Brigette and Lodhi in that case that underlined the admissibility of the evidence. That would have been the situation even if the evidence had shown that Brigette was directly involved in the acts of the appellant. The point at issue was whether, in a situation where Brigette had no direct involvement in the carrying out of the prohibited acts, evidence of that secret relationship had continued to underscore the admissibility of Brigette's secret training in Pakistan so as to make it admissible against the appellant.
94 In this trial, Moustafa Cheikho is alleged to have been one of the conspirators present throughout the whole duration of the conspiracy and involved at all times in participating in it in furtherance of its objects. The relationship between Moustafa Cheikho and the other conspirators, by way of contrast with the Lodhi situation, was a completely open one, as between themselves. There is no direct evidence, at this stage, that those other conspirators knew of the earlier training. More importantly, there is no evidence that the training was relied on throughout the conspiracy, and there is no evidence that there was any need to rely on it throughout the conspiracy. I cannot see, at this stage, that the suggested use of Moustafa Cheikho as a resource, has been established by the evidence presently available.
95 For these reasons, I do not consider that the subject evidence is capable of demonstrating, in the circumstances of this case, that Moustafa Cheikho's alleged training in Pakistan was a resource he brought to the conspiracy so as to make it admissible against the other accused on that basis.
96 I should make it clear that in reaching this conclusion, I do not entirely agree with a number of the submissions raised by defence counsel. I will mention only three of the areas where I do not accept the submissions made.
97 First, in relation to submissions made by Mr Scragg on behalf of the accused Jamal, I do not accept the general proposition that the absence by a particular co-conspirator of knowledge that an individual joined the conspiracy to provide a resource based on his expertise or experience results in that fact being inadmissible against the co-conspirator. One can readily think of a situation where a particular conspirator joins the conspiracy to provide a resource based on his experience and where, for reasons of secrecy, that expertise is kept concealed from the other conspirators, or a number of them. It is in the nature of a conspiracy that it will often be shrouded in great secrecy, even as between individual conspirators. Although the suggested absence of evidence that Jamal and others knew of Moustafa Cheikho's training in Pakistan is a material factor in the decision I have reached, it is not the compelling factor. It is the combination of the factors that I have identified in the present matter, and the absence of evidence in the relation to all of those matters, that leads to my decision to find that the evidence is not admissible at this stage against the co-conspirators.
98 Mr Buscombe's submissions I have found helpful and acceptable in general terms. In particular, I have read carefully the decision of Street CJ in Rex v Gunn & Howden [1930] 30 SR at 336. Mr Buscombe placed considerable reliance on this decision. In that case, Gunn and Howden were charged with conspiring to defraud people by making false representations as an inducement to take shares in a certain company. The company had been formed in 1925 by Gunn. At that time, he had complete control and was the only person interested in its profits. Later in that year, a written agreement was made between Gunn and the company by which Gunn was appointed General Director at a large salary and with a provision which rendered him practically irremovable. In 1927 it was decided to increase the capital of the company and to invite members of the public to become shareholders. Howden became the company's share salesman and, later, organising manager and a director. There was evidence that the two men had been acting in combination to sell shares, and there was also evidence of many misleading statements in a prospectus and other documents. The issue on appeal was whether the trial judge should have left the 1925 agreement before the jury, it also being alleged by the Crown that Gunn had deliberately concealed the existence of that document. At pages 342 and 343 Street CJ stated that the agreement should not have been admitted in evidence against either of the accused. At 343, Street CJ stated: -
"I do not think however that the agreement made by Gunn in 1925 should have been admitted in evidence. In its inception it could have had nothing whatever to do with the conspiracy sought to be established by the Crown. It was made for another purpose altogether, at a time when Gunn was practically sole owner, and before Howden had any association of any kind with the company so far as appears upon the evidence. Howden never knew of it, and even if the jury could have come to the conclusion on the evidence that Gunn was deliberately concealing it (though I think this is open to considerable doubt), I cannot see how the concealment of a document brought into existence for another purpose, before the public was approached to buy shares, and before there was any association between Howden and Gunn, and of the existence of which Howden was ignorant, could be used for the purpose of establishing a common design".
99 Mr Buscombe made much capital of the fact that the Pakistan training sought to be relied upon the Crown occurred nearly two and half years before the formation of the conspiracy as alleged by the Crown. The passage I have cited from Rex v Gunn & Howden makes it clear, however, that that case turned essentially upon its own facts. I do not think that it is authority for the general proposition that an event in the past involving one conspirator could never be brought to account as evidence in a subsequent conspiracy. It is possible to think of many illustrations where the evidence would, or might become admissible. In the present case, however, for the reasons I have stated, I am satisfied that the evidence of the Pakistan training is not, at least so far as I understand the evidence at this stage, admissible against the other conspirators. In theory, it might become so, or possibly so, depending upon the issues that may be brought forward by the defence in the trial.
100 The third submission to which I wish to make brief reference was one made by Mr Waterstreet. I do not see any real comparison between the issue of relationship evidence arising, for example, in a murder trial and the situation of the evidence sought to be relied upon here by the Crown. If the Crown could point to evidence which showed that Moustafa Cheikho's training was in fact being used as a resource in the conspiracy, even if that were not known to a number of individual co-conspirators, then it would in my opinion be capable of admission as evidence. It is the apparent absence of such evidence, I repeat, that leads to my ruling.
101 Because of the view I have reached in relation to the admissibility of the evidence, it is not necessary to consider s 137 of the Evidence Act. My general impression, however, is that if the evidence had been admissible, then subject to the giving of appropriate directions to the jury, I would not have assessed it as unfairly prejudicial evidence.
102 I propose to admit the evidence of LeT training and the identification evidence against Moustafa Cheikho. At this stage, the evidence is not to be admitted against the other accused.