Application by Talal Alameddine pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

1. [1]

   HIS HONOUR: Talal Alameddine (the applicant) has made an application, pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act), for an inquiry into his sentence on 18 May 2018 for two offences:

   1. (1)

      “[T]hat between about 1 October 2015 and about 2 October 2015, he did intentionally possess a thing, namely a .38 special calibre Smith & Wesson model British service revolver, that was connected with the preparation for a terrorist act and he was reckless as to the connection of the thing to the preparation for a terrorist act contrary to s.101.4(2) Criminal Code 1995 (Cth) (‘Criminal Code’)” (“the terrorism offence”); and

   2. (2)

      “[T]hat on or about 2 October 2015, he did supply a pistol, a .38 special calibre Smith & Wesson model British service revolver, to Raban Alou, without Raban Alou being authorised to possess the pistol by a licence or permit, contrary to s.51(1A) Firearms Act 1996 (NSW)” (“the firearms offence”).

2. [2]

   The maximum penalties were, for the terrorism offence, 10 years’ imprisonment and, for the firearms offence, 20 years’ imprisonment.

3. [3]

   The applicant entered pleas of guilty to the offences on 3 October 2017. Three other offences were taken into account in the sentence for the firearms offence. Two were counts of possessing a firearm in contravention of a Firearms Prohibition Order (“FPO”) that was in force pursuant to s 74(1) of the Firearms Act 1996 (NSW), which has a maximum penalty of 14 years’ imprisonment. The third offence was possessing a prohibited pistol, which was a semi-automatic handgun or an imitation thereof, without being authorised to possess the pistol by a licence or permit, contrary to s 7(1) of the Firearms Act 1996 (NSW). The maximum penalty is 14 years’ imprisonment with a standard non-parole period of 4 years.

4. [4]

   In R v Alameddine (No 3) [2018] NSWSC 681, the applicant was sentenced by Johnson J (the sentencing judge) for the terrorism offence to a term of imprisonment for 7 years and 2 months commencing on 15 February 2016 and expiring on 14 April 2023, with a non-parole period of 5 years and 3 months expiring on 14 May 2021, and for the firearms offence (which took into account the three offences on a Form 1), he received a term of imprisonment of 14 years and 2 months commencing on 15 August 2019 and expiring on 14 October 2033, with a non-parole period of 10 years that will expire on 14 August 2029. The total effective sentence imposed was 17 years and 8 months imprisonment commencing on 15 February 2016 and expiring on 14 October 2033, with a non-parole period of 13 years and 6 months expiring on 14 August 2029.

5. [5]

   The applicant appealed his sentence on seven grounds to the Court of Criminal Appeal (“the CCA”): Alameddine v R [2020] NSWCCA 232. Two grounds were upheld by Bathurst CJ, N Adams J agreeing and Price J dissenting. On 18 September 2020, he was re-sentenced for the terrorism offence to 6 years’ imprisonment commencing on 15 February 2016 and expiring on 14 August 2022 with a non-parole period of 4 years and 6 months expiring on 14 August 2020, and for the firearms offence, 12 years’ imprisonment commencing on 15 February 2018 and expiring on 14 February 2030, with a non-parole period of 8 years and 6 months expiring on 14 August 2026. The total re-sentence was 14 years’ imprisonment commencing on 15 February 2016 and expiring on 14 February 2030, with a non-parole period of 10 years and 6 months that expires on 14 August 2026.

The nature of the application

1. [6]

   The applicant was sentenced on the factual basis that on 2 October 2015 between about 1.35pm and 2.55pm he supplied Mr Alou with the firearm (“the S&W revolver”), which was loaded, that was the subject of the firearms offence. Between 3.58pm and 4.04pm, Mr Alou supplied the S&W revolver to Farhad Mohammad, who at about 4.30pm used it to murder Mr Curtis Cheng as he left the NSW Police Headquarters in Parramatta. Mr Alou had earlier failed to source a firearm from three other individuals, referred to in the sentencing judge’s remarks as Persons X1, X2 and X3.

2. [7]

   The sole basis of the application for a review concerns a recording that was relied upon by the sentencing judge in a limited way, and by the CCA on re-sentence. It was a recording of a conversation between the applicant and Mr Alou that occurred between about 1.36pm and 1.42pm, that was partly captured by a listening device while the two men were alone in a vehicle. It was tendered into evidence before the sentencing judge in the Crown case without objection by the applicant, although the parties had differing submissions as to what the applicant could be heard to say. The Crown contended that the applicant could be heard telling Mr Alou “I brang the 30 cal bro”, meaning that he had brought with him a .30 calibre firearm, whereas the words submitted by the applicant were uncontroversial. The Crown case was that Mr Alou rejected that firearm and the applicant supplied Mr Alou with a different firearm, namely, with the S&W revolver.

3. [8]

   The sentencing judge determined that he could not be satisfied beyond reasonable doubt that the applicant uttered the words attributed to him by the Crown concerning the .30 calibre firearm. Nor could he be satisfied to the same standard of the Crown theory that the applicant supplied a firearm that Mr Alou rejected, before he supplied him with the S&W revolver.

4. [9]

   His Honour was satisfied to that standard, however, that the conversation included certain words that were conceded by both parties to be audible; that they were discussing “the big one” and “this is bad man”, so that it was not “an innocuous conversation … capable of innocent explanation”. Further, that combined with the evidence of the movements and other interactions of the applicant, Mr Alou and others, the conversation related to the supply of the S&W revolver and the use of oblique language and the meetings in unusual places were designed to minimise surveillance by the authorities.

5. [10]

   In a subsequent trial before Bellew J involving a different accused (Mustafa Dirani) who was charged with conspiring with the applicant and Mr Alou to do acts in preparation for a terrorist act (namely, to assist Mr Alou to procure a firearm to be used in a terrorist act), Mr Dirani objected to the admissibility of the same recording. Bellew J determined that the recording quality was so poor that it was not possible to determine what was said in the relevant parts of the conversation. Accordingly, it lacked relevance to the issues in that case and therefore was inadmissible: R v Dirani (No 8) [2023] NSWSC 70. Ultimately, the jury in that trial were unable to agree upon a verdict. On a re-trial, the Crown did not re-tender the recording.

6. [11]

   The applicant submits that:

7. [12]

   The application is now considered in more detail.

Relevant principles

1. [13]

   The relevant legislative provisions are ss 78, 79 and 74(2) of the Act. Section 78 provides:

2. [14]

   Section 79 relevantly provides:

3. [15]

   Section 74(2) of the Act provides:

4. [16]

   In Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 442, Dhanji J summarised some relevant principles in applying the statutory test:

The factual background as found by the sentencing judge

1. [17]

   The factual background of the offences, as found by the sentencing judge, was summarised by Bathurst CJ. Insofar as it is relevant to this application, the summary was as follows:

2. [18]

   The Crown material before the sentencing judge included a statement by Constable Chantelle Hannah, which was tendered without objection. Constable Hannah stated that she had occasional contact with the applicant from February 2015. Her interactions with him involved friendly banter, until 5 July 2015. On that day, she noticed “a very obvious change in his appearance and demeanour”, which included him wearing “traditional Islamic dress pant” and having a beard. She stated:

3. [19]

   The sentencing judge noted that, according to Const. Hannah’s statement, the applicant appeared “quite angry and uncooperative with police” during this incident.

The sentencing judge’s findings

1. [20]

   The sentencing judge made the findings recorded at [101] to [104] of R v Alou (No 4) [2018] NSWSC 221 which are extracted in [26] of Bathurst CJ’s judgment which appears at [17] above, as to the nature of the discussions between the applicant and Mr Alou.

2. [21]

   The sentencing judge also made findings in his remarks concerning the applicant’s awareness as to the use that would be made of the S&W revolver. At [95] of R v Alameddine (No 3) [2018] NSWSC 681, his Honour found:

3. [22]

   At [105], in reference to the various meetings and discussions that the applicant and Mr Alou had on 2 October 2015 between 1.28pm and 2.55pm, the sentencing judge said:

4. [23]

   In assessing the objective gravity of the offending, the sentencing judge considered whether the evidence enabled findings to the requisite respective standards of proof as to the applicant’s motive in supplying the S&W revolver and what he knew of the use to be made of it, stating at [138]:

5. [24]

   The Crown submitted that the Court could be satisfied that the applicant provided the S&W revolver “for free”, which shed light upon his willingness to support the terrorist act, whereas the applicant submitted that, to the extent that a finding on that issue was possible, it was supplied for financial gain. The Crown referred to evidence that the applicant had been radicalised and the fact of the conversations and meetings with Mr Alou to support a finding that his sympathy for ISIS contributed to his motive to supply the S&W revolver. The applicant submitted that the evidence did not permit a finding that the applicant had become radicalised, and that it would be speculative to rely upon the meetings and discussions between the applicant and Mr Alou on 2 October 2015.

6. [25]

   In his findings on this aspect of objective seriousness, his Honour referred to the applicant’s interaction with Const. Hannah on 5 July 2015, which:

7. [26]

   His Honour continued:

8. [27]

   And later:

9. [28]

   By way of ultimate findings on objective seriousness, his Honour said:

The appeal to the Court of Criminal Appeal

1. [29]

   The two successful grounds of appeal concerned the admission into evidence of Const. Hannah’s statement in the absence of an annexure to it, and whether the sentencing judge erred in finding the applicant was sympathetic towards ISIS so that it motivated him to commit the offences.

2. [30]

   In Const. Hannah’s statement, in a passage in which she described one of the friendly meetings with the applicant that pre-dated the 5 July 2015 meeting, she said that she recorded the information of that earlier meeting in an intelligence report, which was annexed. However, the annexure was not tendered. It transpired that the annexed intelligence report was dated 24 July 2015; that is, after the incident that Const Hannah described as having occurred on 5 July 2015 in which the applicant referred to ISIS.

3. [31]

   At [107] and [108], Bathurst CJ concluded that the sentencing judge had been inadvertently misled, which obliged the Court to review the conclusion the sentencing judge reached in the passages that are extracted at [25] and [26] above, although it did not necessarily follow that the conclusion reached by the sentencing judge was erroneous. In the process of reviewing the sentencing judge’s conclusion, Bathurst CJ referred to the recording:

4. [32]

   Relevant to this application is one of the unsuccessful grounds, ground 2, namely:

5. [33]

   The Chief Justice referred to the sentencing judge’s findings as to the applicant’s state of knowledge of what the S&W revolver was to be used for, as extracted above at [21], [22], and [26] (at [156], [158] and [159] of the sentencing judge’s remarks). His Honour rejected the submission that the sentencing judge had attributed such knowledge to the applicant at the time the S&W revolver was supplied. Rather, the finding was recklessness, albeit to a very high degree:

6. [34]

   On resentence, his Honour observed:

The application for an inquiry

1. [35]

   In his reasons for rejecting the Crown’s tender of the recording (R v Dirani (No 8)), Bellew J did not identify what parts of the conversation on the recording, as submitted by the Crown, were sought to be excluded by the defence. His Honour stated, relevantly for the purposes of this application:

2. [36]

   As noted, on Mr Dirani’s retrial, the Crown did not seek to re-tender the recording.

The nature of the application

1. [37]

   The applicant submitted in writing:

2. [38]

   The applicant further submitted:

3. [39]

   In this respect, the applicant referred to what Bathurst CJ said in the italicised portion of [126], extracted above at [33], and continued:

4. [40]

   The applicant’s submissions as to how his application arises from the use made of the recording in the sentencing judge’s findings and those made by the CCA are not, with respect, clear. The applicant initially submitted that “the sole basis” of the inquiry is that the recording is not capable of establishing that the applicant had “any appreciation of a terrorist act”.

5. [41]

   As I understand it, the applicant submits that in rejecting the second ground, the Chief Justice took a view of the applicant’s level of knowledge that was unsupported by the evidence by placing undue emphasis on the recording which, the applicant submits, is now discredited; that is, that the Chief Justice determined that the recording “underpinned” a finding that the applicant was aware at that time there was “a very high risk that the loaded revolver would be used in a terrorist attack and it was quite unjustifiable to take that risk” (Bathurst CJ at [126]). This finding by the Chief Justice elevated the objective seriousness of the offending, since it involved a higher degree of recklessness for the terrorism offence.

6. [42]

   The applicant further submits that this was a different finding to those made by the sentencing judge and one that was dependent upon the recording, so that it was “erroneously deployed upon re-sentence”. Further, Bellew J’s determination in R v Dirani (No 8) that he could not discern what was said on the part of the recording relied upon by the Crown in that case, so that it lacked relevance and therefore was inadmissible, heightens the unease or disquiet arising from the reliance placed on it by the Chief Justice.

Written submissions by the Crown and in reply by the applicant

1. [43]

   Written submissions have been received in response to the applicant’s submissions from the Attorney General of New South Wales (“the State Attorney General”) and the Commonwealth Attorney General (including in reply to the applicant’s submissions in reply), broadly to the effect that the CCA did not make different findings to the sentencing judge based on the recording and therefore there was no consequent elevation of the applicant’s criminality, and that there is a substantial overlap between the application and the second ground of appeal that was dismissed by the CCA.

2. [44]

   In submissions in reply filed on 5 May 2025, the applicant appears to be at cross-purposes with the submissions of the State Attorney General. The applicant noted that the State Attorney General submitted that the sentencing judge’s findings relied in part on “other evidence” and then notes that the applicant “has always rejected the Crown’s assertion of what could be heard in the recording”. I did not understand the State Attorney General to have submitted that the sentencing judge relied on the recording other than as to the words that the parties agreed could be heard.

3. [45]

   The plaintiff attached a copy of the recording, presumably as an invitation to the Court to listen to it and form its own opinion for the purposes of this application. That course is rejected. The issues were raised, and the relevant material identified, in the application filed on 20 November 2024. In any event, it would be inappropriate on this review of the material for an opinion to be formed from listening to the recording as to whether in my opinion it is audible and if so, what can be heard. Both Courts accepted the common parts of the versions of what could be heard on the recording that had been submitted by the parties before the sentencing judge.

4. [46]

   The applicant also submitted that “other evidence” included the statement of Const. Hannah and, referring to [150] of the sentencing judge’s remarks, said:

5. [47]

   In the course of written submissions in reply to the Commonwealth Attorney General, filed on 10 June 2025, the applicant referred to the differences between the findings of the sentencing judge and the CCA in more detail, submitting:

Consideration

1. [48]

   In my view, it is apparent from the relevant parts of the judgments of the sentencing judge and the CCA that are extracted earlier in this determination that, ultimately, the same approach was taken to the evidence of the recording in both Courts.

2. [49]

   That is to say, that although the sentencing judge rejected the Crown submission that the applicant could be heard saying “I brang the 30 cal bro”, his Honour nevertheless concluded that the fact of the conversation and the agreed words that were said, in the context of the other conversations and interactions between the applicant and Mr Alou and the anti-surveillance steps taken, was circumstantial evidence that persuaded the sentencing judge beyond reasonable doubt that the applicant knew at the time that he supplied the loaded S&W revolver to Mr Alou that that there was a very high risk that it would be used in a terrorist act.

3. [50]

   As to the sentencing judge’s findings to that effect, see the extracts from the sentencing judge’s judgment above at [22], [26]–[28] (in particular, the sentencing judge’s remarks at [153] and [158], [176]–[180] and [197]–[198]). In the passage extracted at [28] above, at [199] of the sentencing judge’s remarks, his Honour expressed cognisance of the fact that the applicant was not charged with the more serious offence (s 101(4)(1) of the Criminal Code) of having knowledge of the use to which the S&W revolver was to be put, which had a heavier penalty.

4. [51]

   The references by the Chief Justice to the level of the applicant’s knowledge as to the use to be made of the S&W revolver were mostly by way of his Honour summarising the findings of the sentencing judge. Two passages in which the Chief Justice made findings on the issue of the applicant’s knowledge are at [33] and [34] above.

5. [52]

   The first passage, at [33] above, was his Honour’s conclusion as to the merits of ground 2, which was that the sentencing judge had been entitled to find that the applicant appreciated that “there was a very high risk that the loaded revolver would be used in a terrorist attack and it was quite unjustifiable to take that risk”. The reference to the recording that concludes that paragraph is to be understood in the context that the sentencing judge’s finding flowed from all the circumstances, but the utterances of the agreed words in the recording added significant weight to that finding.

6. [53]

   In the passage extracted at [34], his Honour succinctly expressed his finding as to the degree of the applicant’s knowledge, which is in similar terms to that found by the sentencing judge:

7. [54]

   In so finding, it is apparent from what the Chief Justice said at [126] (see [33] above) that his Honour adopted the same approach to the relevance of the recording to the finding of the degree of the applicant’s knowledge as the sentencing judge had done.

8. [55]

   Accordingly, I reject the applicant’s submission that the Chief Justice found that the recording “underpinned” the finding that the applicant “was aware of a high degree of risk that the revolver would be used in a terrorist act”. Rather, the agreed words and the circumstances of the recording were parts of many circumstances that founded the findings. I also reject the submission that the recording was “erroneously deployed upon re-sentence”.

9. [56]

   As to the submission in reply by the applicant to the State Attorney General that the sentencing judge’s finding rested heavily on Const. Hannah’s statement, I note that at [150], the sentencing judge said that the statement was “but one piece of evidence on this issue”.

10. [57]

    The determination of Bellew J in R v Dirani (No 8) that the recording could not be understood and therefore was irrelevant in that case is at odds with the joint position of the parties before the sentencing judge and in the CCA that the parts of it that were accepted by both Courts were in fact audible. The applicant was legally represented before the sentencing judge and in his appeal to the CCA by eminently capable senior counsel who clearly were satisfied that the agreed words were in fact audible, since their audibility was an agreed position and the tender by the Crown of the recording in the sentence hearing was not opposed or challenged on appeal. The sentencing judge stated that he listened to the recording. It is inappropriate to speculate as to how that difference in perception with Bellew J came about.

11. [58]

    For these reasons, pursuant to ss 79(3)(a)(i) and (b) of the Act, the application is refused.