Resolution of the issues
25 How then do these principles apply to each of the situations raised in the arguments? The first question is to consider whether any of the jurors would have been likely to have seen the Four Corners program or, for that matter, to have seen the material referred to by Mr Lange. As to the Four Corners program, there is no evidence before the Court that anyone has seen it. There is no evidence that the program was especially publicised in advance. The Four Corners program, although well known, was not shown on a major commercial channel. The program, it might be inferred, is aimed at a more select audience than perhaps many major timeslot programs on the commercial channels. Moreover, this was a specific program, it was not a news item; nor, so far as I have been able to ascertain, was the program reported in the media, either last night or today. As to Mr Lange's report of the American arrest, it appears to have been a "one-off" and not featured elsewhere to any notable degree. On the assumption, however, that the material may have been viewed, it is necessary to consider the similarities that have been pointed to and to evaluate them in terms of their capacity to create potential prejudice.
26 In my earlier decision, I observed at paras 30 to 32 the following:-
"The first proposition is that although there are obvious similarities, there are major differences between the London plot and the allegations made in the present case. In the London situation, a group of Pakistani men, it appears, had determined upon a precise plot to bring down a number of transatlantic flights. The plan was so advanced that a test run had been undertaken, it seems, on a domestic flight. Further, the precise method of detonation of the explosives on the planes had been selected and thoroughly tested at ground level. By contrast, in the present trial, there is no suggestion that any of the accused had ever identified a target or targets. There is no mention of aeroplanes or of explosives in connection with any target whatsoever. There is no suggestion in the present trial that it had been determined who would carry out any proposed terrorist act or acts. The Crown case falls well short of suggesting that the accused, or any of them, were to be the bombers themselves. Certainly, the Crown case stops short of suggesting that any decision had been made that any of the accused would be the bombers and, as I have said, no target or targets had been selected. There was not the slightest suggestion in the present case, as I have said, that the ultimate aim of the collection of any chemicals or ammunition was the destruction and death of passengers on aeroplanes.
Another major difference is that, in the London trial, there was a video of one of the accused making plain his intentions that he was going to be involved in the death of innocent civilians. It was made plain that he would undertake this devastation because of the failure by America and its allies to heed Osama bin Laden's warning to leave Muslim lands.
Again, by way of contrast, in the present trial, there is no evidence, by way of TI or LD, to suggest that any of the accused themselves has been captured making what was called in the media reports "a suicide video". There is no discussion, as the defence have pointed out to the jury, which mentions a plan or proposal to bomb any target in Australia or overseas. There is indeed no direct reference to the offence alleged in the indictment."
27 To those remarks, I would add these further points in light of the submissions which have specifically been placed before me today. First, there is no suggestion in the present trial that any accused here ever used or adopted the words "you bomb us, so you will be bombed", et cetera. The accused have conceded, or at least not disputed, that those words appeared in, or on, media in their possession, just as they have had to concede that they possessed images of the destruction of the Twin Towers or of Osama bin Laden in media in their possession. Some of the accused, indeed, had media containing images of the brutal execution of hostages by mujahideen. Their case in that regard, however, is that, firstly, everybody had these, they were simply handed out at the prayer hall. Secondly, there is no evidence that any of the accused actually viewed or discussed the material among themselves. Thirdly, there is no evidence they adopted any particular extremist points of view of the kind I have mentioned. This applies certainly to the catch phrase "as you bomb us, you will be bombed", et cetera.
28 The second point I would make is that the health store subterfuge referred to in the program concerning those involved in the London plot was plainly just that. It was a subterfuge. Here, the purchase of laboratory equipment is said to be genuinely for the purposes of a legitimate organics business already in operation. It was not a subterfuge. There is a powerful dispute concerning whether any of the accused in this trial ever acquired or attempted to acquire hydrogen peroxide. Moustafa Cheikho had bottles of the chemical at his home but an innocent explanation was given for this. Thirdly, there is no suggestion in the present trial that a steel suitcase was acquired or to be used to bury material although, admittedly, there is an issue about concealment of materials in the present trial.
29 Fourthly, the defendants in the London trial, or a number of them, according to the Four Corners program, conceded that they had made suicide videos but said that they did not intend to take lives, including their own. Their defence was that they were endeavouring simply to create mayhem and consternation among the public but nothing more. Their defence was that in truth no one was to be injured.
30 This situation contrasts very markedly with the present trial. It may be convenient if I quote once again from Elomar [No 27] at paragraph 33:-
The third and most important difference is that each of the accused has put a case to the jury in the present trial stressing that he was not a participant in any enterprise to undertake or do acts in preparation for a terrorist act or acts. The defence case of each man is that, even if there were some type of criminal enterprise of the kind alleged by the Crown in the indictment, he, certainly, was not a party to such an enterprise. For example, the accused Hasan gave evidence before the jury that his ordering and/or collection of chemicals was undertaken innocently, at the behest of another man who he believed was endeavouring to raise money to send funds overseas to Muslim charities. Hasan's evidence was that his involvement in the ordering of laboratory equipment was to help another friend establish or enlarge an organic products business. None of the other accused gave evidence. But the case of Elomar, Jamal and Khaled Cheikho fastened, to one degree or another, upon the evidence given by Hasan. Moustafa Cheikho's case was simply that he had no involvement in any such criminal conspiracy. Each accused argued that the Crown had simply failed to prove beyond reasonable doubt that he was a participant in the alleged criminal conspiracy. The defence case was placed strongly and unequivocally before the jury in the closing submissions of all counsel.
31 Those observations have equal force in relation to each of the present applications.
32 Turning to Mr Lange's points, I would make these specific responses: First, the only point of similarity between this trial and the Khazaal trial was the report identifying Mr Houda as a solicitor in both matters. That point really leads nowhere in my opinion. The jury would well understand the necessarily independent status of solicitors, an independence entirely divorced from the guilt or innocence of their clients.
33 Secondly, as to the American article appearing on 25 September 2009, it simply does not advance the situation further and certainly not, in my view, to the extent argued by Mr Lange. Of course, as Mr Lange fairly conceded, the American arrests had no connection to the present trial but, secondly, they are, in my view, so divorced in content from the present trial that any publicity concerning them is likely to have had minimum impact, if any impact at all, on any juror who may have seen or read the article.
34 I accept that there are similarities, but the differences are important. The arrests relate to events on the other side of the world. They involve an Afghan man, who had been trained in explosives by al-Qaeda. They involve "cooking up" explosives in a hotel room. They involve the finding of explosive residue in that hotel room. None of that type of thing is involved here at all.
35 I accept, however, Mr Lange's submissions that the fact that potentially prejudicial publicity does not relate to a particular accused is not necessarily determinative of a discharge application. Ordinarily, it may well be determinative, but exceptional circumstances may dictate otherwise.
36 In Re K, which was an application for a stay, not a discharge application, the stay had been refused by the trial judge. The Court of Criminal Appeal, in a judgment delivered by the Court, held in the unusual circumstances of that matter that the trial judge had fallen into error. The nature of the problem appears from the judgment of the Court, in paragraphs 3 and 4:-
"Prior to the jury being empanelled the appellant made an application that the trial be vacated and that the proceedings be stayed temporarily. The basis of the application was that the appellant contended that because of the recent unprecedented publicity which had attended a series of trials and subsequent sentencing of a number of youths of Lebanese origin for sexual assaults upon young Anglo-Saxon females there was a risk of prejudice to him such that he may not have a fair trial. Three such trials had been held and were connected in that some of the accused were in two or more of the trials.
It followed on the appellant's submissions that it would not be in the interests of justice to proceed at this time. It was common ground that the allegations against the appellant are quite unrelated to the series of allegations which arose in the previous trials, however, the appellant identified a number of features that could, superficially at least, convey the impression that this trial was part of that series of connected trials."