Submissions by counsel
6 In relation to the relevance argument, Mr Boulten stressed that none of the material identified above as relevant to Brigitte will be tendered by the Crown to show that the accused and Brigitte were participating in relation to the implementation of the precise charges in the indictment. In other words, it is not suggested by the Crown that it can demonstrate by any of the above evidence that Willie Brigitte was a participant in the making of, collection of or possession of documents as referred to in three of the four counts. Nor is it suggested that there will be evidence to show that he directly participated in the preparation for the terrorist act involved in the remaining count.
7 Mr Boulten argued that all that is shown, at its highest, by the material the subject of the present application is that there may have been some type of association or relationship between the accused and Brigitte. In addition, an examination of the temporal sequence involved in the four charges against the accused show that Willie Brigitte was detained by Immigration authorities on 9 October 2003 whereas three of the four charges related to alleged situations involving the accused after that date.
8 Mr Boulten submitted that there was no independent evidence from which one could draw the inference that the accused and Willie Brigitte were acting together in concert in relation to the matters involved in the four charges (Ahearn v The Queen (1988) 165 CLR 86 at 93, 95 and 99).
9 The Crown accepted the validity of the principles in Ahearn's case and pointed to a similar distinction appearing in Masters, Richards and Wunderlich (1992) 59 A Crim R 445 at 454. The Crown, however, argued that the evidence the subject of the present application is circumstantial evidence which, if admitted, goes to colour or complete the mosaic of the Crown case. In particular, it provides a context against which the actions of the accused may properly be assessed by the jury.
10 The Crown does not argue that the evidence is designed to show, or capable of showing, that Brigitte was involved in the specific acts by the accused which relate to each of the counts in the indictment. Rather, the Crown case will be, (as appears from Exhibit "A") that the accused had a covert and illicit relationship with Willie Brigitte, a trained terrorist, who came to Australia in circumstances that tend to demonstrate he was here in connection with the establishment of preparatory steps towards terrorist acts being committed in Australia. The purpose of the evidence is to complete a circumstantial picture which will enable the jury to draw inferences as to the accused's knowledge and intention in relation to the offences charged. In that sense, the evidence goes directly to a fact in issue namely the fault elements in each of the charges.
11 In support of its submissions the Crown carefully took the Court through a considerable amount of the detail that will alleged to arise in the trial about Willie Brigitte. First there is the aspect of his training with LeT in Pakistan, if the evidence of Kwon be accepted. Secondly, there is the fact that the accused himself spent a considerable time in Pakistan in 2001, 2002 and again in the early part of 2003. Thirdly, there is the mutual Pakistan connection evidenced by calls made on Brigitte's telephone service to a Pakistan number and the fact that much later, after the arrest of Willie Brigitte, there was a contact between the accused and the mutual Pakistani number on 26 October 2003. The evidence related to this last matter will arise from telephone records and personal surveillance of the accused.
12 Fourthly, there will be a deal of evidence to show that the accused arranged for a telephone service to be issued in a false name, namely, "Sam Praveen". Particulars found in his possession or at his unit on 26 October 2003 provide precise evidence that corresponds with the false telephone number that was arranged on 6 May 2003. Fifthly, there was a connection between Brigitte's telephone number in France on 7 May and the Pakistani number. This was followed, about one and a half hours later, by a contact between Willie Brigitte's number and the "Sam Praveen" number.
13 There was further contact between the Brigitte French number and the "Sam Praveen" number on 13 May 2003, that is the day before Mr Brigitte would have left France to travel to Australia. There was another call on the morning of 14 May.
14 Sixthly, Willie Brigitte arrived in Australia on 16 May 2003, giving, as the purpose of his visit a holiday and saying that his usual place of residence was France and that he had come on an Air New Zealand from Auckland. Among documents found in the possession of the accused there was an entry in a notebook which read "16th Friday 8.30am NZ". There then appears to be a flight number and an entry "blue hat - yellow T-shirt. Glasses." (The Crown says that it is to be inferred from all this that the accused was expecting the arrival of Brigitte on 16 May 2003 and that they had had contact in anticipation of his arrival. The "Sam Praveen" service was obtained primarily to permit covert contact between the accused and Brigitte, although it may have been used for other purposes).
15 Seventhly, the first offence with which the accused is charged occurred on 3 October 2003. This was the obtaining of maps from the electricity supply system using a false name. The next of the acts charged involved the obtaining of the details of chemicals and this occurred on 10 October 2003, the day after Brigitte was arrested. Eighthly, during Brigitte's time in Australia there were a number of calls made by a mobile service associated with Brigitte to the service associated with the accused. The service associated with Brigitte was again one that had been obtained in a false name through Vodafone. It was first activated on 31 May 2003 by a mobile service using an SIM card, which was later found in the possession Abdul Rakib Hasan, the butcher from Lakemba. That card, it would seem, was later removed from the telephone, from the handset, and replaced with another that was found in the possession of Brigitte or in his unit at or shortly after arrest. This mobile phone service was taken out in the false name of "John Huck". There were calls made by the John Huck service on 1 June to the "Sam Praveen" service and there were, in addition, 27 calls made between 31 May and 9 October 2003 between the "John Huck" service and the butcher shop at Lakemba. Notes found in the unit occupied by Brigitte included paper with the name and telephone number of Abdul Rakib Hasan.
16 Ninthly, there was the evidence of Ahmad and Altaf that Hasan had visited Willie Brigitte's flat in company with another man who said he was an architect in the city and who said he came from Sialkot in Pakistan and had recently returned from a visit to Pakistan. In addition, Hasan was with the accused when he made the visit to the Internet Café at Campsie and made the telephone calls observed under surveillance on 26 October 2003.
17 Finally, there is the material found in the accused's possession on CD's and DVD's. This considerable body of material relates to LeT and violent Jihaad. There was also a connection between this material and material found in Hasan's premises.
18 Putting all of this material together for the purposes of the submission, the Crown maintained that the evidence sought to be excluded in the present application is powerful evidence in support of the Crown's circumstantial case going to the accused's knowledge and intention in relation to the offences charged.
19 The arguments advanced by Mr Boulten SC on the s 137 point focussed on a very considerable body of media material collected by the defence team to demonstrate the excessive publicity generated by the presence of Willie Brigitte in Australia. It is essentially because of this material that Mr Boulten suggested the jury will "over estimate" and "over value" any evidence that mentions the name Willie Brigitte. The Crown responded to this argument by suggesting that any possible danger of misuse by the jury of the subject body of evidence could be adequately eradicated by appropriate directions from the court.