Resolution of the issues
27 The first point is to decide whether it is likely that any members of the jury would have seen the particular news reports either on television or in the newspapers. Would any member of the jury have heard reports about the London convictions on the radio? Would they have encountered the publicity on the net, or in any other electronic form? The answer to that question is really quite uncertain. There is no evidence on the point. It is impossible to be certain that they would not have seen something of the news in one form or another, but there is simply no evidence from which one could conclude that it was seen, scrutinised in detail, examined or likely to have been, in any sense, embedded in the consciousness of any individual juror. Barely a month has gone past in this trial when there has not been some terrorist outrage in a country or countries overseas. Indeed, as Mr Button pointed out, there have been at least two instances where terror-related arrests or convictions have been publicised concerning to events in Australia.
28 There is no particular reason, in my view, to accept that the media information I have summarised would have been scrutinised in the way it has been by the lawyers for the accused. Their attention to the detail of the articles has been very similar to the type of approach taken by defamation lawyers to media publications. The simple truth of the matter is that our media information is replete, on a daily basis, with outrages of many criminal kinds. This extends, as I have said, on a fairly regular basis, to terrorist related activities or reports. It is a sad reality of contemporary existence.
29 But if I be wrong about this preliminary aspect of the argument, I do not, in any event, think that the "striking similarities" argument has the force suggested by Mr Button SC in his careful arguments. I will endeavour to explain why this is so.
30 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.
31 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.
32 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.
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.
34 As to the particular "striking similarities" the following may be observed:
35 First, it is true that there is an allegation in the present trial that hydrogen peroxide was acquired for the purposes of the alleged conspiracy. Of the accused, it is only Moustafa Cheikho who is alleged to have purchased hydrogen peroxide at a suburban Sydney pharmacy. This allegation is flatly denied and there is a very live issue as to the reliability of the young lady who purported to identify him as the purchaser. The hydrogen peroxide purchased on that occasion was found behind the premises of Khaled Sharrouf. He is one of the alleged conspirators, but he is not on trial in the present proceedings. He is not one of the accused. It is not suggested he was the purchaser. It is not suggested any of the other four accused was the purchaser. The Crown case has not sought to rely upon the co-conspirators' rule. Rather, the Crown case relies only on the conduct and words of each individual accused as being the evidence of participation in the alleged conspiracy. It is also true that Moustafa Cheikho had four bottles of hydrogen peroxide at his home when he was arrested. An innocent explanation, however, was given for this before the jury.
36 The second aspect of similarity was said to be the use of a light bulb filament as a detonator. True it is, once again, that there is an allegation that Moustafa Cheikho possessed a tool kit with cut off fairy lights in it. There was also information on his computer that might be said to show an interest in detonators using an ohmmeter, et cetera. Khaled Cheikho was also said to possess material that showed an interest in basic electronics but it was, overall, rather muted evidence.
37 The third matter was said to be a reference to "battery refills". Again, it is true that the Crown allegation is that battery acid was being purchased for the purposes of the conspiracy. In the London trial, however, although the information is sparse, it would seem that miniature batteries were likely to have been the repository for a chemical detonator. As I say, in the Sydney trial, the Crown alleges that the battery acid was being used with a view to it being used in the making of an explosive. But neither the nature of the ultimate bomb, nor its final composition, was said to have been selected.
38 The fourth matter was the coded messages. The Crown does rely on coded messages in the present case, but suggests that they related simply to the organisation of covert meetings so that materials in connection with the conspiracy could be concealed or hidden from the authorities. There is a significant difference in this from the London situation. In the London plot, the coded messages were specifically to do with the bombing of transatlantic planes. The fact that the opening words of the messages contained false expressions of endearment would not, in my view, reveal a "striking similarity" between the London situation and that alleged in the Sydney trial.
39 The final matter was the allegation in London that one of the offenders had attended Pakistan and brought back with him a plan to assemble a terrorist cell, gather material and to identify targets. There is evidence in the Sydney trial that Moustafa Cheikho attended an LeT training camp in Pakistan in 2001. He denies this and there is a very live issue as to the reliability of the identifying party, and indeed, his truthfulness. The evidence is, however, strictly confined to the case against Moustafa Cheikho. The jury have been told that they cannot use that evidence, even if they accept it, in any way against any of the other men. The consequence of this is that there is no suggestion in the trial that Moustafa Cheikho "brought back" with him any plan to undertake terrorist activities in Australia, let alone a suggestion that such a plan was part of, or central to the alleged conspiratorial task. Moreover, the jury have been told that they cannot use the evidence of Moustafa Cheikho's training in Pakistan, if they find he it was he, as a evidence of any tendency on his part to commit the crime in the indictment. The jury has been told that it is no more than a piece of circumstantial evidence to be assembled, along with other matters relating to Moustafa Cheikho, in their determination as to whether the Crown has proved its case against him beyond reasonable doubt. I suggest that there are very marked dissimilarities between this situation and that referred to in the reporting of the London plot.
40 I have thus far evaluated, as it were, the force of the "striking similarities" argument. I accept it has some substance in it. But it does not carry the weight and texture attributed to it by Mr Button. My view is that, even if the jury had read, seen or heard any of the media reports on the London plot, they might have noticed some similarities, but they would have been able to appreciate immediately the significant range of differences.
41 This leads me to the final point. In my view, the Crown's principal submission is entirely correct. This jury has been instructed on a number of occasions, where it has been necessary to do so, that they are to pay no attention to any media reports of incidents occurring either in Australia or overseas that have a terrorist connection or connotation. They have been told, tactfully but forcefully, that the trial is to be determined only on the evidence that is heard and seen in the courtroom. In my view, this jury has been responsive at all times to these directions. They are, I suggest, well drilled and well regimented into understanding and acting in a way that enables them to put out of their mind matters that are extraneous to the evidence in the trial. I have not the slightest doubt that they will do so in relation to the reporting relating to the transatlantic jet bomb plot. The jury will heed the directions that have been given and will decide this case on the evidence that is before them.
42 The final matter I should mention is that the trial has been going, as I have indicated, for nearly eleven months. This is not to say that, in an appropriate situation, the Court would hesitate from discharging a jury. Obviously the Court would be reluctant to do so after so many months of trial. But if there were a real risk of a miscarriage of justice, the Court would be obliged to accede to a discharge application, notwithstanding that the trial had been going for a very long time.
43 It will be clear from the reasons I have given, however, that I do not think there is any prospect that a miscarriage of justice has occurred or will occur here. I am perfectly satisfied that this jury will honour its oath and decide the case in accordance with the evidence. It will be able to put out of its mind, individually and collectively, as it has done in relation to any other incidents that have occurred during the trial, the recent spate of media publicity. There is no need, indeed no necessity, to discharge the jury in the present circumstances.