Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R

THE COURT: In early November 2005 nine men were arrested in Sydney and charged with a variety of terrorism-related offences, laid under the Criminal Code (Cth) ("the Code"). In May 2007 all nine were arraigned in the Supreme Court on an indictment that alleged, against each, conspiracy to do acts in preparation for a terrorist act or acts. The trial was fixed to commence in late February 2008. Before a jury could be empanelled, eight months of pre-trial procedures took place, before Whealy J (as he then was). His Honour delivered many interlocutory judgments on procedural and evidentiary issues.

On 12 September 2008 Mazen Touma, one of the nine, pleaded guilty to four counts on a new indictment presented against him. The charges were: The dates of the offences coincided with the dates of the conspiracy alleged against all nine. The Commonwealth Director of Public Prosecutions ("the Director") accepted the pleas in substitution for the conspiracy count on the original indictment. On 24 October 2008 Touma was sentenced to imprisonment for 14 years with a non-parole period of 10 years and 6 months: Regina (C'Wealth) v Touma [2008] NSWSC 1475.

On 24 October 2008 Mirsad Mulahalilovic, another of the nine, pleaded guilty to a single charge of possession of a small quantity of firearm ammunition which was connected with the preparation for a terrorist act or acts, being reckless as to the connection (s 101.4(2) of the Code). The Director accepted this plea in substitution for the original indictment. On 30 January 2009 Mulahalilovic was sentenced to imprisonment for 4 years and 8 months with a non-parole period of 3 years and 6 months: Regina (C'Wealth) v Mulahalilovic [2009] NSWSC 1010.

On 3 November 2008, Omar Baladjam, also one of the nine charged, pleaded guilty to four counts on an indictment. The counts were similar to those to which Touma pleaded guilty. On 7 April 2009 he was sentenced to imprisonment for 18 years and 8 months, with a non-parole period of 14 years: Regina (C'Wealth) v Baladjam (NSWSC, Whealy J, 7 April 2009, unreported).

A fourth of the nine men, Khaled Sharrouf, was initially found unfit to be tried. An order was made for his separate trial. Subsequently, he was found fit to be tried, and, on 3 August 2009, entered a plea of guilty to a count of possession of items connected with the preparation for a terrorism act, knowing of that connection. On 24 September 2009 he was sentenced to imprisonment for 5 years and 3 months, with a non-parole period of 3 years, 11 months and 7 days: Regina (C'Wealth) v Sharrouf [2009] NSWSC 1002. The Director accepted the plea as concluding the charges against Sharrouf.

On 3 November 2008 a jury was empanelled for the trial of the five remaining accused men, the present appellants: Mohamed Ali Elomar, Abdul Rakib Hasan, Khaled Cheikho, Moustafa Cheikho and Mohammed Omar Jamal. Since Whealy J was satisfied of the matters required by s 19(2) of the Jury Act 1977 (NSW), a jury of 15 was empanelled. With the exception of Khaled Cheikho and Moustafa Cheikho, when referring to any appellant individually, we will use his surname only.

The trial proceeded over the following 11 months. On 16 October 2009 the jury returned verdicts of guilty of the charge of conspiracy against each appellant. On 15 February 2010 Whealy J sentenced the appellants as follows: Elomar: imprisonment for 28 years with a non-parole period of 21 years; Hasan: imprisonment for 26 years with a non-parole period of 19 years and 6 months; Khaled Cheikho: imprisonment for 27 years with a non-parole period of 20 years and 3 months; Moustafa Cheikho: imprisonment for 26 years with a non-parole period of 19 years and 6 months; Jamal: imprisonment for 23 years with a non-parole period of 17 years and 3 months: see R v Elomar; R v Hasan; R v Cheikho; R v Cheikho; R v Jamal [2010] NSWSC 10; 264 ALR 759 ("RoS").

Except for the sentence imposed on Jamal, each sentence was specified to commence on 8 November 2005, the day the appellants were arrested. The sentence imposed on Jamal was specified to commence on 21 December 2005.

Each appellant now appeals against conviction and seeks leave to appeal against sentence.

The charge of conspiracy to do an act or acts in preparation for a terrorist act or acts stems from a combination of s 101.6 and s 11.5 of the Code. Section 101.6 appears in Pt 5.3 of the Code, which carries the heading "Terrorism" and contains a detailed regime of provisions concerning offences of that nature. Section 101.6 provides as follows: "101.6 Other acts done in preparation for, or planning, terrorist acts (1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act. Penalty: Imprisonment for life. (2) A person commits an offence under subsection (1) even if: (a) a terrorist act does not occur; or (b) the person's act is not done in preparation for, or planning, a specific terrorist act; or (c) the person's act is done in preparation for, or planning, more than one terrorist act. (3) Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against subsection (1)." 11 A "terrorist act" is defined in s 100.1 in the following way: "terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public." Sub-sections (2), (3) and (4) provide: "(2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person's death; or (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system." (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person's death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public. (4) In this Division: (a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and (b) a reference to the public includes a reference to the public of a country other than Australia." 12 Section 11.5 provides as follows: "11.5 Conspiracy (1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed. Note: Penalty units are defined in section 4AA of the Crimes Act 1914 . (2) For the person to be guilty: (a) the person must have entered into an agreement with one or more other persons; and (b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and (c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement. (2A) Subsection (2) has effect subject to subsection (7A). (3) A person may be found guilty of conspiracy to commit an offence even if: (a) committing the offence is impossible; or (b) the only other party to the agreement is a body corporate; or (c) each other party to the agreement is at least one of the following: (i) a person who is not criminally responsible; (ii) a person for whose benefit or protection the offence exists; or (d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy. (4) A person cannot be found guilty of conspiracy to commit an offence if: (a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or (b) he or she is a person for whose benefit or protection the offence exists. (5) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person: (a) withdrew from the agreement; and (b) took all reasonable steps to prevent the commission of the offence. (6) A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so. (7) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence. (7A) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence. (8) Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given."

The indictment was in the following terms: "The Director of Public Prosecutions of the Commonwealth of Australia, who prosecutes in this behalf for Her Majesty, charges on 3 November 2008 that Mohamed ELOMAR, Abdul Rhakib HASAN, Khaled CHEIKHO, Moustafa CHEIKHO, and Mohammed Omar JAMAL Between about 8 July 2004 and 8 November 2005 at Sydney in the State of New South Wales and elsewhere did conspire with each other and with Omar Baladjam, Mazen Touma, Khaled Sharrouf, Mirsad Mulahalilovic, and divers others to do acts in preparation for a terrorist act (or acts). Particulars of the terrorist act (or acts) The terrorist act (or acts) was (or were) to involve an action or threat of action involving the detonation of one or more explosive devices or the use of firearms or both that was (or were) to be done or threatened: a) With the intention of advancing a political, religious or ideological cause; and b) With the intention of: i. Coercing, or influencing by intimidation the Government of the Commonwealth or a State, Territory or foreign country or a part of a State, Territory or foreign country; or ii. intimidating the public or a section of the public; and c) In circumstances where the action, if carried out, would: i. Cause serious harm that is physical harm to a person; and/or ii. Cause serious damage to property; and/or iii. Cause a person's death; and/or iv. Endanger a person's life, other than the life of the person taking the action; and/or vi. Create a serious risk to the health or safety of the public or a section of the public; and d) In circumstances where the action to be done or threatened would not be advocacy, protest, dissent or industrial action, or alternatively would not be advocacy, protest, dissent or industrial action of a kind not intended to: i. Cause serious harm that is physical harm to a person; or ii. Cause a person's death; or iii. Endanger a person's life, other than the life of the person taking the action; or iv. Create a serious risk to the health or safety of the public or a section of the public."

It will be observed that the indictment specifically named Baladjam, Touma, Sharrouf and Mulahalilovic as members of the conspiracy, as well as "divers others".

Each appellant has filed an individual Notice of Appeal against conviction, and an application for leave to appeal against sentence. A good proportion of the grounds they have pleaded are common to all, or some, of the appellants. In many cases, the appellants have adopted grounds framed by others. There remain, however, some grounds relied upon by only one, or a small number, of appellants.

Although it will be necessary, in due course, to refer to parts of the evidence in more detail, the Crown case may, in the first instance, be stated with relative brevity. What follows is drawn largely from the sentencing remarks of Whealy J on 15 February 2010: see RoS. The Crown case was as follows.

Each of the appellants is, or perceives himself to be, a devout adherent of the Muslim faith. Each could properly be called a fundamentalist or extremist. Over a period that commenced no later than 4 May 2005, each appellant agreed with each other appellant, and with others, to take steps towards an act (or acts) of terrorism. The conspiracy came to an end on 8 November 2005 with the arrest of all appellants. On that day Jamal was arrested but released, and re-arrested on 21 December 2005.

The object of the conspiracy was to equip the appellants with the knowledge for, or to enable, a terrorist act or acts to be carried out in Australia. The purpose was to instil terror and panic in the Australian community, and to force the Australian government to change its alliances and foreign policies. The terrorist act(s) contemplated involved the detonation of one or more explosive devices, or the use of firearms, or both.

Included in the Crown case was evidence that before the commencement date specified in the indictment, Moustafa Cheikho attended a militarist Islamic training camp in Pakistan. Objection was taken on behalf of all appellants to the admission of the evidence. The Crown sought to lead the evidence against all accused. On 15 April 2008, Whealy J ruled that the evidence would be admitted against Moustafa Cheikho: Regina (C'Wealth) v Baladjam [No 7] [2008] NSWSC 756.

As a consequence of that ruling, applications were made on behalf of Hasan and Elomar for separate trials. On 30 September 2008, Whealy J rejected the applications: Regina (C'Wealth) v Baladjam [No 49] [2008] NSWSC 1468.

During the course of the conspiracy, the appellants communicated extensively with one another and with others, often by telephone, and sometimes using coded language. Each of the appellants undertook various tasks. It is not necessary, for present purposes, to identify the precise activities of each appellant. It is sufficient to say that they amassed an armoury of firearms (some of them authorised by appropriate licences), together with large volumes of ammunition. They purchased laboratory equipment. They collected (usually, but not always, electronically) a considerable library of literature containing instructions on the manufacture of explosives, and the detonation of various improvised explosive devices. Much of this literature was in the Arabic language. They obtained a large number of mobile telephones, almost always (if not always) in false names. They purchased chemicals and other materials suitable for use in the manufacture and detonation of explosives. They were in possession (again, usually electronically) of a very large quantity of extremist literature, advocating the pursuit of "Jihad" (or "holy war") and expressing propagandist fundamentalist Islamic beliefs.

The appellants were under suspicion, and were the subject of surveillance, for some months prior to their arrest. Many of their conversations were recorded pursuant to warrants issued under the Surveillances Devices Act 2007 (NSW), or the Telecommunications (Interception and Access) Act 1979 (Cth).

On two occasions, in March and April 2005, some of the appellants travelled to remote bushland areas of NSW, where they camped for two to three days. (The Crown was not able to establish that these trips were for the purpose of "training" in terrorist activities; rather, the Crown contented itself with describing the camps as "bonding sessions".)

At least by the closing stages of the conspiracy, the appellants were aware that they were under suspicion. Indeed, from June 2005, search warrants were executed on the premises of many, if not all, of the suspects, and on various motor vehicles.

Even before then, the appellants engaged in evasive and concealment activities. The acquisition of mobile telephones in false names was one instance of such behaviour. Another was making travel arrangements under false names.

It was not the Crown case that the conspirators had identified a specific target, nor even a specific method of achieving their objective. No precise terrorist act had been selected; nor had any precise perpetrator or perpetrators been nominated. The conspiracy, when brought to an end with the arrest of the participants, was still in the planning stages. That, no doubt, explains why the conspiracy alleged was formulated by reference to s 101.6 of the Code (that is, preparation for terrorist activity).

It was the Crown case that the appellants were associated with another group of Islamic fundamentalists operating in Victoria. This group was also under suspicion, and subject to surveillance. That surveillance also included interception of telephone communications, and the use of listening devices. It was not the Crown case that this group was part of the conspiracy alleged against the appellants. The Crown relied on the evidence of the association in order to establish the state of mind, and the thinking, of the appellants in conducting themselves as they did. This evidence came to be known as "the Melbourne evidence"; it is the subject of some considerable controversy, and will be referred to in more detail below.

The leader of the Melbourne group, on the Crown case, was a well known Islamic cleric named Abu Nacer Benbrika ("Benbrika"). Another prominent member of the group was Aimen Joud ("Joud"). The evidence in the Crown case included the recording of a conversation on 23 February 2005, to which Benbrika and Sharrouf were parties. Benbrika is recorded as advocating that, in the cause of Jihad, it was necessary that Muslim adherents "do maximum damage" to the lives and the property of non-believers or the enemies of Islam. This came to be known as "the maximum damage conversation" and plays a significant role in the appeal.

Although four (Touma, Mulahalilovic, Baladjam and Sharrouf) of the nine men initially arrested and charged were dealt with separately (see [2]-[5] above), it remained the Crown case that they were part of the conspiracy alleged against the appellants. That had some evidentiary implications. Evidence of their overt acts was admissible against the appellants.

On a date or dates that we are unable to ascertain, the Director provided to the then accused a document entitled "Crown Case Statement", and another entitled "Summary of Overt Acts". The former was said to contain an overview of the evidence upon which the Crown then intended to rely at trial. It did not purport to be "an exhaustive summary" and was said to be subject to change and possible amplification. The latter was expressed to be intended to be read in conjunction with the Crown Case Statement. 31 The principal issues at trial were: During the relevant period, (1) Did a conspiracy of the kind alleged by the Crown exist? (2) If it did, was each offender a participant in that conspiracy? The defence raised by each appellant was that, even if such a conspiracy were in existence, which was denied, he was not a party to it. Others may have been, but he was not.

Pre-trial proceedings with respect to the charges against the present appellants began in February 2008. Over the following eight months, Whealy J disposed of numerous interlocutory applications and resolved numerous evidentiary issues. At this time, not only the present appellants, but also Touma, Mulahalilovic, Baladjam and Sharrouf were subject to the indictment. It was only after the completion of the pre-trial procedures that they took the various courses they did.

On 5 February 2008 a trial commenced in the Supreme Court of Victoria in Melbourne before Bongiorno J. Twelve men were charged with offences against Pt 5.3 of the Code. One of the men was Benbrika. Another was Joud. The Crown opening in the trial attracted a considerable degree of media attention.

In February 2008 applications were made on behalf of all of the present appellants. The first application was made to Bongiorno J, by intervention in the Melbourne proceedings on 20 February. The appellants sought orders restraining publication of certain evidence anticipated in the Melbourne trial, particularly the names of any of the present appellants who might be mentioned in the Melbourne trial; the concern was with any such evidence that might link any of the appellants with Benbrika. After hearing argument, Bongiorno J refused the application, but suppressed publication of details of the application until further order: R v Benbrika (Ruling No 19) [2008] VSC 48.

The second application was made to Whealy J on 25 February 2008. Again, the appellants sought orders restricting publication of any evidence in the Melbourne trial that might identify the appellants. They sought a specific order prohibiting publication of any reference to Benbrika other than by the pseudonym "C" or "Mr C". On behalf of Jamal only, a temporary stay of the trial was sought.

The application was supported by an affidavit affirmed by the solicitor representing Mulahalilovic and Khaled Cheikho, but, for the purpose of the application, representing all the then accused. Annexed to the affidavit was a large quantity of media material, taken from the internet, and from print and electronic media outlets. The print materials included newspapers circulating in Sydney.

The media material presented reported the proceedings in the Melbourne trial, with extensive reference to the lengthy opening in the trial given by the Crown prosecutor. It included: "The leader of a Melbourne-based terrorist group told his members they should kill 1000 non-believers to try to force the withdrawal of Australian troops from Iraq, a court has heard. Among targets discussed to inflict maximum casualties were railway stations or football grounds, the Victorian Supreme Court was told today." Later in the report, the Melbourne accused were named. Benbrika was identified as the "leader and director" of the terrorist group.

In another report, it was said that the Crown alleged that the organisation, led by Benbrika, was "stockpiling a vast library of extremism material". Other reports were to similar effect. One began: "Just weeks out from the 2004 Federal election a Melbourne man urged his Muslim spiritual leader to facilitate a terrorist attack on an Australian target before the poll, a court heard today." Some of the material contained photographs of Benbrika. He is somewhat distinctive in appearance.

Whealy J took a similar course to that taken by Bongiorno J. He declined to make the orders sought, but prohibited publication of details of the application. He declined to stay the trial: R (Cth) v Baladjam; R (Cth) v Cheikho; R (Cth) v Cheikho; R (Cth) v Elomar; R (Cth) v Hasan ; R (Cth) v Jamal; R (Cth) v Mulahalilovic ; R (Cth) v Sharrouf; R (Cth) v Touma [2008] NSWSC 714; 270 ALR 92.

In March 2008, relying on s 11.5(6) of the Code, all accused sought orders dismissing the charge of conspiracy. On 18 March, Whealy J rejected the applications: R (Cth) v Baladjam; R (Cth) v Cheikho; R (Cth) v Cheikho; R (Cth) v Elomar; R (Cth) v Hasan ; R (Cth) v Jamal; R (Cth) v Mulahalilovic ; R (Cth) v Sharrouf; R (Cth) v Touma (No 4) [2008] NSWSC 726; 270 ALR 106. Several of the accused sought leave, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), to appeal against that decision. Leave to appeal was refused: R v B [2008] NSWCCA 85; 76 NSWLR 533.

In May 2008, as part of the pre-trial procedures, counsel for all appellants sought the exclusion of the Melbourne evidence, challenging its relevance and relying on s 137 of the Evidence Act 1995 (NSW), pursuant to which, in a criminal trial, evidence sought to be adduced by the Crown must be excluded if its probative value is outweighed by its prejudicial effect. Reliance was placed upon further reporting of the evidence in the Melbourne trial, including reports of evidence that three of the Melbourne accused had travelled to Sydney to take part in a "training camp"; reports of evidence that the 2005 AFL Grand Final was nominated as the original bombing target of the Melbourne group; and reports of evidence of "the maximum damage conversation".

In a lengthy judgment, dated 28 May 2008, Whealy J determined that the evidence would be admitted: Regina (C'Wealth) v Baladjam [No 19] [2008] NSWSC 1441. He made particular reference to evidence of an interview with Benbrika broadcast on the ABC television current affairs programme, "the 7.30 Report". A suggestion that the transcript of the interview be read, rather than showing Benbrika's face, was opposed by the Crown on the grounds that assessment of his demeanour was important, and was not ultimately adopted. Ultimately, by agreement between the parties, throughout the trial Benbrika was referred to as "Sheikh Bakr" (a name he did, at times, use), and the other members of the Melbourne group by their first names only.

In August 2008, senior counsel for Elomar, supported by counsel for all other accused, renewed the application for exclusion of the Melbourne evidence, and some other evidence of conversations involving one or more of the accused. These conversations were, generally, conversations that could be interpreted as signifying extremist attitudes and views held by the accused. Also subject of the application was evidence of the contents of computers and other material found in the possession of the accused.

For the purpose of determining that application, Whealy J was provided with three folders of evidentiary material. This consisted of transcripts of recorded conversations in which the various accused had participated, and also of the computer material.

On 26 August 2008, Whealy J again determined that the evidence would be admitted: R (Cth) v Baladjam; R (Cth) v Cheikho; R (Cth) v Cheikho; R (Cth) v Elomar; R (Cth) v Hasan ; R (Cth) v Jamal; R (Cth) v Mulahalilovic ; R (Cth) v Sharrouf; R (Cth) v Touma (No 38) [2008] NSWSC 1458; 270 ALR 187.

In due course, it will be necessary to deal in more detail with what is encompassed in "the Melbourne evidence".

On 15 and 16 September 2008, verdicts were delivered in the Melbourne trial. Seven of the 12 accused, including Benbrika, were convicted of the offence of knowingly being members of a terrorist organisation (s 102.3 of the Code). Some of the accused were also convicted of other (Pt 5.3 of the Code) offences. The convictions attracted further media attention. At this time, a jury for the trial of the appellants had not been empanelled.

In October 2008, objection was taken on behalf of all accused to the admission of some of the so-called "extremist material" found to be in their possession. On 2 October Whealy J ruled that the majority of the material would be admitted, with some exclusions and modifications: Regina (C'Wealth) v Baladjam & Ors [No 50] (NSWSC, Whealy J, 2 October 2008, unreported).

On 9 October 2008 the appellants sought various non-publication orders. The orders sought were directed, not to the Crown, but to the media generally. Various media outlets were represented at the hearing. Specifically, the appellants sought an order prohibiting publication of evidence tending to connect the Melbourne proceedings with the trial of the appellants; an order prohibiting further publication of the 7.30 Report interview; an order prohibiting publication of any photograph or image of Benbrika; and an order prohibiting publication of the application or its hearing.

Ultimately, Whealy J made orders in the following terms: "i. that there be no publication of any information tending to connect criminal proceedings in Victoria against Benbrika [and the other Melbourne accused], information or evidence revealed therein, and (a) the proceedings in this Court [against the original nine accused], and (b) [against the present appellants]. ii. no further publication for the duration of the trial in this Court ... of the interview between Abdul Nacer Benbrika and the ABC on 4 August 2005 or any part thereof. iii. for the duration of any such trial in this Court as aforesaid, no further publication of any photograph or image, drawing or representation of Abdul Nacer Benbrika taken from the said interview or derived in any way from it. iv. no publication of this application, this hearing or of the orders made pursuant to this hearing.": Regina (C'Wealth) v Baladjam & Ors [No 59] (NSWSC, Whealy J, 10 November 2008, unreported)

Between 27 October and 3 November 2008 a jury was empanelled in the Supreme Court for the trial of the appellants. Each appellant entered a plea of not guilty. The Crown opened the case to the jury over a period of 5 days. Counsel for all appellants made opening statements to the jury. They made clear that the vast majority of the prosecution evidence was not in dispute. What was in dispute was what inferences could properly be drawn from the evidence - that is, whether it could properly be held to establish participation in a conspiracy of the kind alleged.

On 26 November 2008 - that is, about four weeks into the trial - the jury sent a note to the judge. The note expressed concerns about two incidents that had taken place during the previous week. The first incident involved four jurors, who said that they had been followed to the car park they used. The second involved one juror, who believed that she had been observed in her car by a woman, who made notes in a notepad, and made a telephone call. The inference was clear, that the jurors suspected that the woman was making a note of their car registration or other details. The note identified a woman who wore a headscarf and who they had seen in the public gallery of the court.

Whealy J brought this note to the attention of all counsel, in private chambers. The discussion in chambers was taken down by a court reporter, transcribed, and became part of the trial transcript. As was apparent from the note, the woman had been a regular attender at the trial, in the public gallery. During the discussion in chambers it emerged that she was a niece of Elomar, and had been consulted from time to time during the trial by Elomar's solicitor. The jury may have been able to observe this interaction, and deduce that she was associated with at least one of the then accused.

Whealy J referred the note to the attention of police for enquiries to be made. Senior counsel appearing for Moustafa Cheikho indicated that his instructions were to apply for a discharge of the jury.

On the return of the jury to the court, Whealy J directed them at some length concerning the incidents. He told the jury that there was "not the slightest suggestion that this incident had anything to do with the accused" and reminded them, forcefully, that they were to judge the trial impartially and on the evidence heard in the court. Later on the same day all appellants joined Moustafa Cheikho in seeking discharge of the jury. Whealy J heard argument from counsel. Still later in the day, the Crown prosecutor indicated that he had received instructions from the Director not to oppose the application for discharge.

Notwithstanding the position taken by the Director, Whealy J declined to discharge the jury: Regina (C'Wealth) v Elomar [No 4] [2008] NSWSC 1444. Thereafter, he made arrangements for the jury to be conveyed to and from the court by bus. This episode is the subject of one of the grounds of appeal and will be considered in more detail below.

On 3 February 2009 Bongiorno J sentenced those convicted in the Melbourne trial. The sentences attracted a degree of media attention.

On 11 February 2009 all appellants applied for discharge of the jury. These applications were based upon what was called "large scale publicity" following the sentencing of the Melbourne accused. On 6 March 2009, Whealy J refused the application: Regina (C'Wealth) v Elomar [No 12] [2009] NSWSC 448.

The trial proceeded. Of the appellants, only Hasan gave oral evidence. On 11 September 2009, during the course of the summing up, application was made on behalf of four of the accused for discharge of the jury. The basis for the application was that it had been widely reported in the media that a terrorist bombing had taken place in Mumbai, India, and there were reports of terrorist activity in Britain. On 21 September, Whealy J refused the application: Regina (C'Wealth) v Elomar [No 27] [2009] NSWSC 985. Verdicts of guilty were returned on 16 October 2009. The appellants were sentenced on 15 February 2010: see RoS.

As indicated by the opening statements of all counsel, a considerable proportion of the evidence relied upon as establishing the conspiracy was not in dispute. What was in dispute was the motivation of the appellants in undertaking their activities. The Crown sought to prove that, in the case of each appellant, by a very large quantity of circumstantial evidence.

The appellants were under surveillance over a considerable period of time. Listening devices, authorised pursuant to relevant legislation, and telephone intercepts, similarly authorised, produced a large volume of evidence. As mentioned above, search warrants were executed in June, July and August 2005 on the homes of various of the alleged participants. Further search warrants were executed at the homes of all appellants on the day of their arrest, 8 November 2005.

The Crown set out to prove that the motivation of each appellant was to engage in an act or acts of terrorism by proving that each held extremist, fundamentalist, Islamic beliefs, and was committed to "Jihad". "Jihad" is defined in the Macquarie Dictionary as (in Islam) a "spiritual struggle, efforts made in the cause of God; at the personal level, a struggle to be righteous and follow in God's path; at the community level, a struggle or holy war in support of Islam against unbelievers".

Two principal ways in which the Crown sought to prove the state of mind of the appellants were through extremist literature found, on execution of search warrants, to be in their possession, some of it in hard copy, the majority in electronic form, and through statements out of their own mouths, in the recorded conversations. The execution of search warrants produced vast amounts of material that may properly be called "extremist". One controversial aspect of the evidence by which the Crown sought to demonstrate the motivation of the appellants was the discrete body of evidence known as "the Melbourne evidence". This will be outlined in more detail below.

It is now necessary to set out the Crown case in more detail. Before coming to that task, we make the following observation. The logistics of these appeals were, as were the logistics of the trial, formidable. The Court therefore required the Crown to provide a summary of material evidence advanced at trial, and the appellants to respond by identifying any areas of dispute, and any material relevant to the grounds of appeal said to have been omitted from the Crown summary. In what follows we have relied heavily upon the Crown document, in the light of the responses of the appellants.

The evidence presented on behalf of the Crown fell into a number of categories, as indicated below: By this categorisation, we do not intend to suggest that any item of evidence fits into only one category. The categories are not mutually exclusive. As is the case with most filing systems, much of the evidence could rationally be placed into more than one category. The categorisation has been adopted as a convenient method of setting out the Crown evidence.

In reviewing the evidence in the Crown case, it will be convenient to refer also, as briefly as possible, to any admissibility or procedural issues that arose concerning that evidence. This will be done with particular attention to those issues that arise in the appeals.

The physical activities relied upon by the Crown overlapped, but were not co-extensive with, the overt acts particularised as acts undertaken in furtherance of the conspiracy relied upon by the Crown in the Summary of Overt Acts. Some pre-dated the commencement date alleged in the indictment. Others were not said by the Crown to have been undertaken in furtherance of the conspiracy, but had other evidentiary value, as will become apparent. This evidence included the following: It is necessary to say more about the first of these, the attendance by Moustafa Cheikho at a training camp in Pakistan. The evidence showed that, in 2001, Moustafa Cheikho travelled to Pakistan for the purpose of attending a "training camp" conducted by an Islamic religious organisation called Lashkar-e-Taiba ("LeT"). LeT had a military operation, the origins of which lay in opposition to the Indian occupation of Kashmir.

The evidence concerning Moustafa Cheikho's attendance at the LeT camp was given by an American citizen (of Korean origin), Yong Ki Kwon, who gave evidence by audio visual link from the United States. Kwon had himself been charged in America with offences, and had initially been sentenced to imprisonment for 11 years and 6 months. A series of reductions granted by reason of his assistance to American and other authorities eventually brought his sentence down to one of 38 months.

Kwon had attended the LeT camp in late 2001. The camp was situated in a number of locations. Kwon described the training as involving three steps. The first, of about 12 days, involved familiarisation with weapons; the second, of 30 to 33 days, consisted of "commando training", including camouflage, reconnaissance, field manoeuvres, target shooting, external communication devices, ambush tactics, and "repelling and rope crossing". Kwon did not identify the third stage of training (although it appears that, in committal proceedings, he had said that the third stage was for people who were committed to "going into Kashmir").

On Kwon's description of the routine at the camp, it is apparent that there was some emphasis on training for physical fitness. There were regular prayers, and in the evenings religious discussions. There were mosques at each geographical location of the camp.

Some care was taken to ensure that participants did not know the full names of other participants. What were called "Abu" names, meaning "father of ...", were used. This was a traditional means of protecting the identities of individuals involved in "jihad-type activity".

From photographs, Kwon identified Moustafa Cheikho as an Australian, using the name "Abu Asad", who had participated in the training camp. Kwon did not claim that Moustafa Cheikho attended the camp in the same intake as he. His evidence was that Moustafa Cheikho arrived at the camp as he (Kwon) was completing stage 2. However, they were in the same vicinity for physical training, meals, and prayers, and had conversations with each other. They were two of a small number of English speakers in the camp. Kwon said that Moustafa Cheikho told him that he was from Australia, that he had a reference letter from a sheikh to gain entry to the camp, and that, on completion of training, he intended to return to Australia. Kwon said that he observed Moustafa Cheikho engaging in physical training, and, on one occasion, cleaning an AK-47.

In November 2003 Kwon was interviewed by an Australian security agent and by Federal Bureau of Investigation (USA) ("FBI") Special Agent Wade Ammerman. In the course of the interview with the Australian agent he was shown an array of 12 photographs, from which he identified a photograph of Moustafa Cheikho as the person he knew as "Abu Asad". He said that in one conversation with "Abu Asad", Kwon had asked if "Abu Asad" was going on to Kashmir after training, but that "Abu Asad" said that he was not; he intended to return to Australia. Kwon did not ask why "Abu Asad" was undertaking the training if that were his intention.

Kwon's evidence identifying Moustafa Cheikho as the "Abu Asad" with whom he had come into contact at the camp was, in cross-examination, challenged. He accepted that, although he had been interviewed by officers of the FBI prior to his interview by the Australian security organisation, he had not mentioned the presence of an Australian at the camp.

There was unchallenged evidence that Moustafa Cheikho had, on 27 September 2001, travelled to Malaysia. He said in his outgoing passenger card that the country in which he intended to spend the most time was Bangladesh. He returned to Australia on 22 January 2002, from Singapore. On his incoming passenger card he said that the country in which he had spent the most time while away was Pakistan.

In one of the many pre-trial hearings, objection was taken on behalf of all appellants to the admission of this evidence. The Crown prosecutor indicated that it intended to use the evidence in two ways: first, directly against Moustafa Cheikho as evidence supporting inferences that (i) he had entered into the agreement the subject of the alleged conspiracy (s 11.5(2)(a) of the Code); (ii) that he did so intentionally (s 11.5(2) of the Code); and (iii) that he intended that an offence or offences would be committed (s 11.5(2)(b) of the Code).

The second way in which the Crown sought to use the evidence was against the appellants, as evidence that Moustafa Cheikho's training in Pakistan constituted an "available resource" to the conspiracy the Crown alleged. It may be assumed that this depended upon evidence, also proposed to be led, showing association between Moustafa Cheikho and the other appellants.

In a pre-trial judgment delivered on 15 April 2008, Whealy J ruled that the evidence would be admitted only against Moustafa Cheikho: Baladjam [No 7].

The evidence indicated that all appellants were in possession, either electronically or in hard copy, of literature of various kinds, some of which might be called "extremist" or "jihadist". Moreover there was a large degree of commonality in what they possessed; that is, material in the possession of one appellant was also in the possession of other appellants and other alleged conspirators. The Crown divided this material into sub-categories: In these reasons, it is possible only to give a relatively brief sample of the nature of the extremist Islamic material. It was voluminous. Where we extract quotations from the documents, we will reproduce the spelling used in the particular document, although there are variations in the spelling of some words.

These documents had titles such as:

The "two camps" mentioned in the first of these were identified as "The Camp of Imaam (Belief) and The Camp of Kufr (Disbelief)" - that is, belief or disbelief in Islam. This passage was attributed to Sheikh Osama bin Laden. The document goes on to assert: "Those who are in the camp of Imaam and carry the Haqq (absolute truth) must come out with it and confront the Baatil (falsehood). Only then will the Haqq become Haqq and prevail even if the Kuffar hate it."

The "Fundamental Concepts Regarding Al-Jihad" was a lengthy publication, that included sections endorsing the permissibility of assassinating disbelievers, and that "martyrdom is not sought for its own sake, rather it is to make the religion dominant".

The "Defence of the Muslim Lands" documents distinguished between "offensive Jihad", which it defined as " where the enemy is attacked in their own territory" and "defensive Jihad", defined as "expelling the Kuffar from our land", which was said to be "a compulsory duty upon all".

In one "Book of Jihad" it was asserted "whosoever dies without participating in an expedition (Jihad) nor having the intention to do so; dies on a branch of hypocrisy".

The documents relating to martyrdom included:

The first of these contains the following: "The pestering Jews are the gatherers of all the shameful defects and the collectors of the aggravations and the evils and they are the harshest of Allah against Al-Islam and its people. He, the Most High said: Verily, you will find the strongest among men in enmity to the believers (Muslims) the Jews and those who are Al-Mushrikan ... And Allah has made compulsory the fighting against them and making Jihad against them so that the Word of Allah is the highest and the word of those who disbelieve is the lowest ... He, the Most High said: Fight against those who believe not in Allah, nor in the Last Day, nor forbid that which has been forbidden by Allah and His Messenger and those who acknowledge not the religion of truth (ie Islam) among the people of the Scripture (Jews and Christians), until they pay the Jizyah with willing submission, and feel themselves subdued ..."

The "Female Suicide Bombers for God" appears to be an article published in an Israeli political journal and examines a particular attack by a female suicide bomber, mentions another earlier attack by women and questions whether this constituted a "turning point" in the policy of fundamentalist terrorist organisations.

The document entitled "Martyrs: The Building Blocks of Nations" contained the following paragraph: "The life of the Muslim Ummah is solely dependent on the ink of its scholars and the blood of its martyrs. What is more beautiful than the writing of the Ummah's history with both the ink of a scholar and his blood, such that the map of Islamic history becomes coloured with two lines: one of them black, and that is what the scholar wrote with the ink of his pen; and the other one red, and that is what the martyr wrote with his blood. And something more beautiful than this is when the blood is one and the pen is one, so that the hand of the scholar which expends the ink and moves the pen, is the same as the hand which expends its blood and moves the Ummah. The extent to which the number of martyred scholars increases is the extent to which nations are delivered from their slumber, rescued from their decline and awoken from their sleep."

The document entitled "The Virtues of Martyrdom" contained a summary, as follows: "1) Noble objectives require enormous sacrifices. 2) Sacrificing one's soul is the ultimate sacrifice. 3) The status of the martyr and the virtues of martyrdom. 4) Examples of martyrs from among the companions of the Prophet sallallaahu alaihi wa sallam. 5) Examples of contemporary martyrs. 6) A call to support the Muslims in Palestine and a stern warning against forsaking them. 7) The deceitful Western Media and its twisting of facts."

This sub-category included documents with the following titles:

The interview with Commander Abu Abdul Aziz began with an introduction that contained the following: "FOLLOWING its tradition of discussing (issues) with Ulema (scholars), students of (legal Islamic) knowledge and reformers, we present before the hands of the dear readers this interview. It is with one of the forerunners of Jihad in this era ... It is no doubt that Jihad has become in these days a grave accusation not only in the Arab and Western media, but also in the minds of many within the rank and file of the youth of Revivalist Islam. Their views and legal rulings are confused because of unclear experiments, and sometimes phony symbols. Jihad remains (an authentic expression of Islam) for the people of (Islamic religious and legal) knowledge and the people of Jihad (And al-Jihad); those who know the (legal) conditions of Jihad in the Qur'an, Sunnals and the understanding of the pious generations (as-Salay as-Sadh) ..."

A document associated with the "Jihad Videos" included the following: "The following are some selected Jihad songs [nasheed] that are Islamically valid ... Come listen to what Islamic songs are like, these ones that can move you to tears ... These are not some lullaby songs which talk about Allah's creations, or pink and yellow butterflies. Rather, these nasheed talk about real things, like Jihad, which differentiates the Believers from the Hypocrites ... The first line in this nasheed translates to: 'We used to own this world for centuries ...' [and then look what happened to us when we forgot Jihad]."

The At-Tibyaan Publications document (a statement by Sheikh Abu Mesa'ab Al Zarqawi to Osama bin Laden) contained the following: "I want to assure you that we are keeping our covenant with Allah, our Jihad on the path of Allah will continue and we will sacrifice everything we have including our lives, in order for the religion of Allah to become the law of the land. We have made up our minds, we have chosen our option, we have raised the banner of Jihad, we have sharpened our swords, and we have decided to ride our spears to glory and honor."

This sub-category included documents with the following titles:

The document entitled "The Ruling on the One Who Insults the Prophet of Allah" identified as "the first issue" the following: "That Whoever - be it Muslim or kafir - Swears at the Prophet, Then It Is Obligatory to Execute Him." The text that follows quotes "one of the Great Imams" as saying: "The Muslims have formed consensus upon that whoever swears at Allah, or swears at His Messenger or rejects anything from that which Allah Azza Wa Jall Revealed or kills a Prophet from the Prophets of Allah 'Azza Wa Jall, that he is a Kafir due to that, even if he accepts everything that Allah Revealed."

The document entitled (in Arabic) "The Need for Allah's Laws" referred to "universal need for justice and safety for all the inhabitants, human and non-human, on this planet" and to nuclear testing, the death of soldiers in unnecessary wars, and pollution from poisonous chemicals from industrial sites, and said: "Surely, our Lord and Creator has not left us without a solution to these problems. Of all the problems that exist, our Maker and Creator is showing us the Need for Shari'a, which is a universal panacea that will meet the needs for all that are crying out for justice. Others stood up in the face of evil and grasped the banner of jihaad. This action indeed proved fruitful and brought success to these groups who propagated this idea ... A portion of the brothers striving in jihaad, although well meaning, have forgotten about the jihaad that exists back home ... The priority for us now is to fight the other apostates and hypocrites first, then to deal with the unbelievers after that. But what has happened is that there is a concentration on the unbelievers, which leads to the exclusion of the apostate in our own house. Certainly, a burglar inside a house is more dangerous than outside, as Allah I cautions us, 'And fight those near to you from the Kuffar (unbelievers)' ... ... This is why it is so important to get these societies inflamed with the fire of jihaad. Allah I commands us to uphold this great principle ... 'So fight in the cause of Allah. You are only responsible for yourself, and incite the believers so that Allah may protect you from the evil of those that are kuffar.' ... The medicine needed for this clean up is what Allah I proclaimed in this ayah, 'And fight them until there is no more Fitnah (Shirk, oppression or absence of Shari'a) and the religion in totality is for Allah'."

In a document on the "Discussion on the understanding of the methodology to establish the Islamic state" it is asserted that: "2) We have been ordered to establish the Islamic State. This is proven by various evidences ... 3) This obligation is known to befFard a keyfayah, and thus if neglected, those capable of carry out the work required to achieve the obligation, become sinful."

We mention only one of these documents in detail. In a document entitled "The Exposition Regarding the Disbelief of the One that Assists the Americans", the following appears: "Statistically, it [the United States] is the most populace in whore houses, homosexuality, lesbianism, nude bars, pregnancies out of wedlock, children born out of wedlock, incest, crimes of character, television stations of moral deprivation, consumption of alcohol, clubs of frivolous activities, gambling, dancing, and various forms of corruption... ● It contains more than twenty million (20,000,000) sexual deviants [homosexual men and women]. ● More than five thousand (5,000) children are bought and purchased there every year. ● Approximately one -third (1/3) of all children born there are conceived out of wedlock (children of fornication). ● Out of every twenty people (20) in America, there is one person kidnapped. ● More than fifteen million (15,000,000) babies have been killed there due to legalized abortion. ● The city San Francisco is considered the capitol (sic) of homosexuality and they (homosexuals) represent one-fourth of the voters in the city. ● There are more than one hundred million alcoholics there (100,000,000). ● The alcohol producing companies there produce of alcohol what reaches the value of twenty-four billion dollars ($24,000,000,000)."

In one of the documents in this sub-category, the perpetrators of the attacks were described as: "... those nineteen heroes - our brothers - who by the shedding of their blood wrote a new page in the history of Amerika: one of rejection by the Muslims of Amerikan arrogance and tyranny, one which expressed their pride in their own Way of Life, one of honour, and one which manifested their striving to avenge the Muslims and all who are oppressed."

In another, it was said: "And for the first time in modern history, the Muslims were proactive makers of great events, not reactive and effected by events! The greatness of this event is apparent in five ways: The first: It returned Islaam back into confrontation and in war with the Kuffar, after nationalism, patriotism, and interests were the main driving force for wars and conflicts. So it brought out the christain crusading enmity from the hidden to the open, and from strength into action. The second way: It made clear the great role of Jihaad in changing the global balances. The third way: It ended the thought of using the nation states in politics and in declaring peace or war, because the leadership of this conflict is in the hand of those who have no nationalist affiliation ... The fourth way: It ended the era of America striking whoever it wishes from the Muslims without being punished, for ever Allaah Willing. The fifth way: It is the beginning of the fall of the 'New World Order' idea, which America will sadly miss in a short number of years. It is also the beginning of the complete collapse of America, Allaah Willing."

There was a great deal more in the same vein.

There was another sub-category of material to which we will refer as inflammatory material, intended to instil fear and hatred of modern civilisation, values and culture. Some showed dead or injured Muslim civilians and soldiers, "designed to evoke sympathy and distress from Muslim viewers": [46] RoS. Some contained "slogans" and other material relevant to terrorist attacks in the United States of America on 11 September 2001. This material was apparently designed to evoke admiration for those who had carried out the attacks. Some contained images of high profile identities (for example, Osama Bin Laden). This appears to have been designed to encourage viewers to commit to Islamic Jihad. Some of the material depicted military conflict, showing Americans and their allies being killed or wounded in combat. Some material depicted Muslim prisoners being badly mistreated or manhandled by their captors.

Some of this material showed the execution of hostages or prisoners by Mujahideen. ("Mujahideen" is a term used to denote "freedom fighters".) This material was described by Whealy J as "particularly brutal, distressing and graphic": [48] RoS). Of these, his Honour observed: "It is impossible to imagine that any civilised person could watch these videos. So disturbing were they that none of the executions was shown to the jury. The preliminaries to the execution of a Korean prisoner in one video were shown but without audio content. That was the extent of it. Otherwise the jury were simply given a written description of the videos and their contents ..." Some of this material "comprised miscellaneous extreme exhortations". There was more, but it is not necessary to go into further detail.

These documents dealt with military training and equipment, marksmanship, field techniques, "mission preparation", sniper sustainment training, cover, concealment and camouflage, fighting positions, combat intelligence and counter-intelligence. One was entitled "What we can learn from Al-Queda". (The introduction to this article indicates that it was prepared in order to equip potential targets of terrorism to deal with such a threat.)

These documents included "Special course in manufacturing explosives - for the fighting religious group proclaiming the truth until God's will prevails". Others contained detailed instructions (or "recipes") for the manufacture of explosive devices.

The purpose of the tender of this evidentiary material was twofold. First, it was intended to throw light on the individual states of mind (and therefore motivation and intention) of each appellant. Second, there was a high degree of commonality with respect to the possession of the individual items: many of the videos, compact discs or other items were found in the possession of three, four, or in some cases all five, of the appellants. This was relied upon to contribute to proof of the agreement necessary to establish the conspiracy.

Not all documents were in the possession of all appellants, or all alleged conspirators. It is unnecessary to identify precisely which appellant had possession of, or access to, any particular document. There was a significant degree of commonality, in that all documents were in the possession of a number of appellants and other alleged conspirators, and there was also a commonality of theme.

The documents under this category included material on such topics as:

One document opens with the paragraph: "Generally the military training ought to be acquired by every healthy Muslim. Even the disabled Muslim could perform various military duties, due to the modern method of warfare. Specifically, each and every member of the Jihaad Movements and organisations, must obtain the highest standard of military training and ought to acquire first hand experience of actual combat. After this necessary training they ought to serve whichever section they are assigned."

Included in this material were: These documents contained a great deal of technical information concerning the manufacture of explosives, the use of explosives, storage and other information. The "Introduction to Explosives" and "The Terrorist's Handbook" were found to be in the possession of only Khaled Cheikho.

On 25 May 2005 a publication entitled "The Illustrated Encyclopaedia of Abdullah Zul Bagadin Part 2" was saved to a USB stick belonging to Elomar. The USB was located in a study in Elomar's home when the search warrant was executed on 27 June 2005. On 19 August 2005, at the request of Elomar's niece, the USB stick was returned. It was again seized on 8 November 2005 when the appellants were arrested. On examination, it was discovered that "The Illustrated Encyclopaedia" had been deleted on the day of its return, 19 August. No other document on the USB had been deleted.

There was other material relevant to this sub-category. On 3 March 2005 a spreadsheet from a webpage entitled "Kalashnikov AK-47" was downloaded to Khaled Cheikho's hard drive. On 28 May 2005 a document entitled "Explosives.html...blackpowdersalutes" was downloaded to a computer in Khaled Cheikho's premises. On 24 September 2005 Moustafa Cheikho, using the name "Shenkero" bid on eBay for, and won, a DVD entitled "Navy-Seal Combat training". Three days later, on 27 September, Moustafa Cheikho bid on eBay for, and won, a DVD entitled "Sniper lessons Commando Para-army SAS SBS recce".

There was a significant amount of evidence of the appellants obtaining, or seeking to obtain, various chemicals and other items associated with the manufacture of explosive devices. Some of this evidence is itemised below: 114 Some of the evidence of the appellants acquiring and possessing firearms and ammunition is itemised below:

Between January and October 2005 mobile telephones were activated in false names as follows:

The evidence showed that the Sarah Saavri number was answered by Jamal on 12 October 2005; the Adam Sharp number was used by Hasan on 15 May 2005; the Mark Jenkins and John Pham numbers were used by Elomar; the Jeffrey Leydon number was used by Baladjam; the George Markis number was used by Hasan and Jamal; and the Tom Clincley number was used by Khaled Cheikho.

In addition, a telephone registered in the false name of Anfony Kommitto was used to call Joud, and was used by Hasan on 27 August 2005.

There were many instances of evidence in which two or more of the appellants or other alleged conspirators had associated with one another. The following is a sample of evidence showing somewhat more intensive association.

On 28 December 2004, Elomar, Hasan and Touma were trail bike riding together in bushland in Sydney.

Of more significance, perhaps, two "camping" trips, involving various of the appellants and other alleged conspirators and members of the Melbourne group, took place in close temporal proximity, in remote regions of NSW. In each case, there are features of the event that are of more significance than demonstrating mere association.

Between 16 and 18 March 2005 Hasan, Sharrouf and Khaled Cheikho joined Fadi Sayadi, Joud and Raad (all members of the Melbourne group) at a camping site at a property called Curranyalpa. Curranyalpa is part of a property in the remote southwest of NSW, available to rent for fishing, hunting, camping and four-wheel drive enthusiast parties. The booking was made by a person who gave his name as "Adam George", and who said that he wanted to take his father and uncles on a fishing trip. Despite requests by the owner of the property, the party failed to complete the required paperwork. Examination of the property after their occupation produced, inter alia, a number of spent cartridges of varying calibres.

The second camping trip took place between 12 and 14 April 2005, at a property called Mulga Creek Station, in the south of NSW. Again, the booking was made in a false name (Andrew Scott), via the mobile telephone registered in that name. Present at the camp were Elomar, Khaled Cheikho, Moustafa Cheikho, Hasan and Touma, together with others. Again, despite requests, the requisite paperwork was not completed. Again, subsequent examination produced spent cartridges and evidence of shooting.

On 9 October 2005, Khaled Cheikho, Moustafa Cheikho, Hasan, Jamal and Sharrouf drove from Lakemba to Sutton Forest.

On 7 November 2005 (the day before the appellants were arrested) Elomar, Khaled Cheikho, Moustafa Cheikho, Sharrouf and Touma gathered outside the office of a solicitor in Bankstown. Later that afternoon they all met again at Elomar's house.

The registration and use of mobile telephones in false names was one example of a concealment technique. There were many instances of telephone conversations which the Crown alleged were conducted in guarded language, or in code. Khaled Cheikho and others made inquiries about sophisticated closed circuit television security cameras.

When stopped by police at Sutton Forest, on their return from a trip to Melbourne to visit the Melbourne group, Moustafa Cheikho and others told police they had taken a trip to Canberra.

We have mentioned above the discrete body of evidence that came to be known as "the Melbourne evidence". In the outline of this category of evidence, there will be some inevitable repetition of matters that have been the subject of previous reference.

During at least the last three months of 2004 a number of men in Melbourne had been under surveillance, suspected of preparing for terrorist acts. These included Benbrika (Sheikh Bakr). Also included in the group were Joud, Fadi Sayadi, Ahmed Raad, and Izzydeen Atik. These individuals were referred to collectively as "the Melbourne group". It was the Crown case that Benbrika was the leader of the Melbourne group and that he was an Islamist who had publicly declared his support for militant or violent Jihad. The Crown proposed, by demonstrating close and regular contact between the appellants and their Sydney associates and members of the Melbourne group, particularly Benbrika, to establish a link between the extreme views and policies of the Melbourne group and the views and policies of the appellants.

During the period of the surveillance, various of the present appellants were in contact, in various ways, with Benbrika and others of the Melbourne group. We will not refer to the whole of that evidence. A sample will suffice.

Late in August 2004, Hasan, Elomar and Moustafa Cheikho travelled to Melbourne and met, inter alia, with Benbrika. They returned to Sydney by car on 30 August. Shortly after midnight, they were stopped by NSW police and questioned. Moustafa Cheikho told police that they had been to Canberra, looking to buy a boat. This was false.

On 6 December 2004 Benbrika travelled to Sydney by air, having booked in a false name. Joud, Raad and Sayadi drove to Sydney. After visiting a camping store, the men spent the afternoon at Sharrouf's house, with Hasan present. There was other contact between Benbrika and one or more of the appellants.

On 23 February 2005, Hasan and Sharrouf travelled to Melbourne to meet with Benbrika. Their conversations on that day were recorded, pursuant to warrants issued under the relevant Victorian legislation. The conversations recorded commenced at about 7.50pm. There are five separate but successive transcripts of the conversation, although it appears that Benbrika and Sharrouf were continuously in one another's company for the whole of the evening. Also present throughout was another male who is unidentified. Later in the evening Joud joined the group. It may be gleaned from the recordings of the early stages of the evening that the four were downloading and printing material from an electronic device. The material appears to be drawn from a document entitled "A Guide for the Mujahideen". Another document referred to was entitled "Martyrdom Operations". The following extract is from a transcript of the conversation, which was before the jury as an aide memoire.

At a very late stage in the evening, Benbrika is recorded in the following terms: "Abu Bakr, blessed is he by Allah, he said I mean, about the Zakat if they, if they don't give just a little bit, I will fight them. Yes. 'If they prohibited me from [inaudible] that they practised I would've fought them' any small thing I will fight them. Yeah, this is to show you the importance of the Shari'ah. If you say, oh, it's alright, it's alright, the Shari'ah will die. That's why we need to revive these kinds of things. Especially now the best thing now is to be as a Mujahadid prepared. Has - everyone has to prepare himself. Or to die or to be jailed Allah knows best. I don't want this kind of life. Give that to them. But we have to be careful. If we want to die for jihad we do maximum damage, maximum damage. Damage their buildings with everything, and damage their lives, just to show them. That's what we waiting for. You be careful [inaudible] trust no one. The only one you trust is [inaudible] advise your brother [inaudible]. Because it's a responsibility. You make them, you make the brothers in danger [inaudible] even if it's you [inaudible]. He shouldn't know nothing about [inaudible]. If we see that we are [inaudible] in need we try to convince the brothers. One day, the main thing is the [inaudible] this is a problem. [Inaudible] I'm waiting anytime to, for them to come." (italics added for emphasis; the bold print is in the original and indicates that the words were spoken in Arabic) At this point, the transcript records, Sharrouf asked: "Why?". Benbrika is recorded as replying: "Because I [inaudible] I never let anyone come to my house and I know that they, ah, they wanna talk to me but I never let them." The transcriber has indicated that "Zakat" translates as "alms tax"; "Shari'ah" translates as "Islamic law"; "Mujahadid" translates as "freedom fighter".

This is the conversation that, during the trial, came to be known as "the maximum damage conversation".

In March 2005, Hasan, Sharrouf, Khaled Cheikho and Elomar joined Joud and Raad at the Curranyalpa camp, where firearms were discharged (see [121] above) and some experiments with explosives were conducted.

On 4 May 2005, Elomar, Hasan and Sharrouf travelled to Melbourne where they met Benbrika, Joud and Saad at Benbrika's home. Their communications were recorded by a listening device. One of the matters discussed was the purchase of science and laboratory equipment from the Haines catalogue.

On 26 July 2005 Benbrika travelled to Sydney, where he stayed at Sharrouf's home. He returned to Melbourne the following day, accompanied by Jamal.

On 31 July 2005 Benbrika again travelled to Sydney by air; accompanied by Jamal. They were picked up at the airport by Sharrouf.

On 4 August 2005, Benbrika took part in a televised interview on an ABC current affairs program, the 7.30 Report. This appears to have been prompted by the execution of a search warrant.

Benbrika told the interviewer, Nick McKenzie, that he was from Algeria, but had lived in Australia since 1989. He said that he considered himself better off in Australia because, unlike in Algeria, he had freedom to practise his religion. He expressed a fear, however, that the situation would become worse for Muslims in Australia. This was because of the foreign policies of the United States of America, Australia and the then president of the United States, George W Bush.

Benbrika was asked a number of questions about his views of the legitimacy of the use of terrorist bombs. It might be thought that his answers were somewhat evasive. The following is a sample of the questions he was asked and the answers he gave during the interview as they appear in the transcript: "Q. Do you support the right of Australians to go and be involved in Jihad? A. According to my religion this question has to be asked first to John Howard. Why John Howard is helping America? There must be a link and John Howard himself he knows the answer. You may find many Muslims fighting in Iraq or in Afghanistan which is because they believe they are brothers as John Howard is helping Bush in his war and then the people they do the same. Q. So you say that while Australia and John Howard is supporting America in places like Iraq it's okay for Muslims from Australia to go to Iraq and help other Muslims fighting against the US and Australia there? A. According to my religion Jihad is a part of my religion and what you have to understand that everyone who fights for the sake of Allah the first - when he dies the first drop of blood that comes from him out, all his sin would be forgiven. That's one. Second, when he will die he will not be asked in his grave. Number three, he will be married with 72, which called in our religion holy women, see those women which you see in the whole of the world it's nothing. We call them (indistinct) thing. The women in the (indistinct) in the Paradise are something special. They got so special beauty and then if you would like to have those women you need to pay. That's why when somebody wants to get married as a normal you know he has to buy gold for his wife, he has to buy you know and you see in the room a new bathroom any new. That's why if somebody wants to die for the sake of Allah he knows what he's doing. His life is nothing comparing what Allah is promising to him. ... Q. What happens if a young Muslim here thinks that Allah has told him to do something like blow up a bus and they go and do that. Do you think that is the wrong thing to happen here? A. This is very sensitive question. I can't give you the answer, the reason why this Muslim who wants to do this kind of job, I not, I can't give you the answer, not because the answer is difficult just because I need to know what he wants to do ... According to his action I can't tell you this is correct or this is wrong. [Benbrika was asked a number of times about killing 'innocent people'; on each occasion he replied that killing innocent people was forbidden by the Islamic religion.] ... Q. And what would you like to say? What do you think you were saying - what would you like to say freely to your students? What are you not being allowed to say? A. I said to my students and to every Muslim here in Australia or and even in the whole world I advise them to fear Allah and actually now in this situation it's gonna be worse for them. Before there was Afghanistan, now Afghanistan has been attacked. Okay, why John, why Bush would attack Afghanistan. According to him he want Osama bin Laden. Fair enough you want to kill him. Now Taliban said to him now prove us that Osama did it. Second, when you prove us Osama bin Laden needs to be judged according to Islamic law, not to your law. Because if anyone, any Muslim seeks a judgment for other than his law, which is Islamic, he is not any more the Muslim. ... [When asked whether Muslims living in Australia should respect Australian law, Benbrika gave, as an example of Australian law that should not be binding on Muslims, family law, which he said was against the Islamic religion.] Q. You mentioned Osama bin Laden before, what do you think of Osama bin Laden? A. Osama bin Laden, he's a great man. Osama bin Laden was a great man before the 11th of September which they said he did it and until now nobody knows who did it ... Osama bin Laden was praising who did it. That's why the American even themselves they couldn't prove Osama bin Laden. Osama bin Laden according to his speech, he was praising the people who did it. It doesn't mean - that's why until now nobody can say that Osama did it or not."

Benbrika reiterated that it had not been proved that Osama bin Laden was responsible for the terrorist attacks in America on 11 September 2001, and that Osama bin Laden was "a great man".

Towards the end of the interview, the following exchange was recorded: "Q. So you think it's acceptable to curse Jews, as you put it? A. To curse anyone, anyone that Allah cursed him we have to curse him. This is the meaning of religion. The meaning of Islam is to submit yourself, yourself to Allah. This is the meaning of Islam, submitting yourself to your laws. ... Q. But isn't it important in Australia where we have freedom of expression, freedom of religion, the freedom that allows you to speak freely that we accept other religions? A. According to my religion, here I don't accept all other religion except the religion of Islam. Q. Isn't there a danger in you pushing that view that you will incite, you will encourage other people to attack Jews, attack Christians here in Australia? A. No, this is your understanding. This is your understanding. Q. What is your understanding? A. I am telling you that my religion doesn't tolerate other religion, it doesn't tolerate. The only one law which needs to spread can be here, anywhere else it has to be Islam. Q. What do you say to people who say to you if you choose to live in Australia you should abide and respect by Australian laws, which expressly say that we have to let other people of religions live side by side respect them and not to express anything bad or hate against them? A. A hundred per cent this is very bad. This is very bad. ..."

Benbrika telephoned Sharrouf to alert him to the programme and to warn him to watch it. Sharrouf made arrangements for the programme to be videotaped and spread the word of the programme, calling, among others, Elomar. It was the Crown case that this interview had been recorded and discussed by several of the appellants.

Between 11 and 15 August 2005 Benbrika was again in Sydney. He was picked up at the airport by Sharrouf. At other times he was driven by Hasan. He was observed in the company of Khaled Cheikho, Moustafa Cheikho, Hasan, Jamal and Sharrouf.

On 31 October 2005 Benbrika again flew to Sydney. He was picked up at the airport by Moustafa Cheikho and Sharrouf.

In addition to the evidence of face to face meetings with Benbrika, there was also evidence of extensive and regular telephone contact between him and members of the Sydney group, and between Joud and members of the Sydney group. Frequently, the telephone contact was made by the use of the mobile telephones registered in false names, or by the use of public telephones (even where the initiator of the call was known to have access to a mobile service). Frequently, also, the participants in the conversations used coded language.

Another aspect of the Melbourne evidence arose from the execution, on 17 September 2004, of a search warrant at Joud's home in Hopper's Crossing, Victoria. Located during that search, in electronic form, were documents entitled "The Terrorist's Handbook" and the "White Resistance Manual". The former contained instructions for purchasing explosives and propellants, "explosives recipes", and sections on the use of explosives. The latter contained instructions, with diagrams on the storage of weapons and ammunition. Noteworthy in this context, were references to the use of PVC pipes and "slip on type end caps", and PVC cement - items that had been obtained by several of the appellants.

There was also evidence from which it could comfortably be inferred that there was a level of sharing of material, both in hard copy and in electronic form, between members of the Melbourne group and the appellants.

The Crown case in respect of Benbrika and the Melbourne evidence was that the appellants, or some of them, were taking spiritual guidance from Benbrika, and that he wielded significant influence on their thinking and on their conduct. The Melbourne evidence including the evidence of the 7.30 Report interview was tendered in order to demonstrate the nature of that influence, and therefore as relevant to the states of mind of the appellants. More specifically, it was tendered as an item of circumstantial evidence that threw light on the purpose of the appellants in acquiring firearms, ammunition and materials capable of being used in the manufacture of explosives.

It will be seen that many of the individual items of evidence, taken in isolation, could have no apparent sinister connotations. It was by the interlocking of various items of evidence that the Crown sought to establish the conspiracy, and the intent of the appellants. For example, items of hardware purchased were frequently ordinary everyday items. However, such items were identified in the explosives manufacturing material as useful or necessary for the manufacture. Conversations recorded on listening devices and telephone intercepts threw light on other activities of the appellants.

Although there is a good degree of commonality in the grounds of appeal filed on behalf of the various appellants, there are some variations in the language in which the grounds are framed, and there are some grounds that are specific to one only (or more) of the appellants. For the most part, with respect to the grounds that are common, it will be convenient to refer to them as numbered in the Notice of Appeal filed on behalf of Hasan.

Grounds 1, 2 and 3 of Hasan's notice of appeal are as follows: "1. In a context where the trial judge had admitted into evidence footage of 'The 7.30 Report' interview with Abdul Nasser Benbrika ('Benbrika') over objection, the trial miscarried by reason of large scale publicity concerning 'the Melbourne proceedings'. Further, his Honour erred in not discharging the jury following application to do so made on 11 February 2009. 2. The trial judge erred in admitting into evidence the listening device recording of 23 February 2005 in which Benbrika is heard speaking of a plan to do 'maximum damage'. 3. The trial judge erred, (and the trial thereafter miscarried), in declining to discharge the jury after the 'car park' incident." These grounds are replicated, although differently numbered, in each Notice of Appeal.

Ground 4 of Hasan's Notice of Appeal is: "4.(a) The trial judge erred in admitting evidence of Yong Ki Kwon and his identification by photo array of Moustafa Cheikho as a person he knew as Abu Asad with whom he had trained at a Lashkar-e-Taiba camp in Pakistan in 2001. (b) Having admitted evidence concerning Moustafa Cheikho's attendance at a Lashkar-e-Taiba camp against Moustafa Cheikho, the trial judge erred in his refusal to thereafter grant separate trials for the other accused persons including the appellant." This ground is replicated (differently numbered) in the Notices of Appeal of Khaled Cheikho, Jamal and Elomar. 155 The evidence concerning the LeT camp is the subject of the grounds numbered 1 and 2 in the Notice of Appeal of Moustafa Cheikho, which are pleaded as follows: "GROUND 1 His Honour erred in admitting the evidence of Yong Ki Kwon. In particular: a) His Honour erred in finding that Kwon's evidence established the training extended 'well beyond' military training; b) His Honour erred in concluding that the evidence was relevant otherwise than for the purpose of tendency or bad character reasoning; c) His Honour erred in his assessment of the probative value and unfair prejudicial effect of Kwon's evidence; d) His Honour erred in concluding that the identification evidence should not be excluded under s 137 [of the Evidence Act 1995]. GROUND 2 The directions to the jury regarding the evidence of Kwon were inadequate."

Grounds 5, 6 and 7 in Hasan's Notice of Appeal are as follows: "5. The trial judge erred in admitting into evidence images and footage of gruesome media material. In particular his Honour erred by failing to limit the quantity and nature of the material. He further also erred in failing to make the orders sought which effectively (and it is submitted appropriately) would have constrained the manner in which this material was presented to the jury. 6. The trial judge failed to direct adequately and erred in his directions as to how the jury might use the gruesome media material referred to in Ground 5. 7. The appellant reserves the unsuccessful ground of appeal identified in the appeal under s 5F of the Criminal Appeal Act 1912 based on the alleged duplicity in the indictment: see B and Ors v Regina [2008] NSWCCA 85." Each of these grounds is replicated in each other Notice of Appeal.

Ground 8 in Hasan's Notice of Appeal is: "8. The trial miscarried as a result of the joint conduct of a conspiracy trial in combination with the events and asserted errors the subject matter of Grounds 1 to 2 and 4 to 6, above." This ground is replicated in the Notices of Appeal filed on behalf of Moustafa Cheikho, Jamal and Elomar.

Jamal's Notice of Appeal against conviction is identical with that of Hasan's.

Both Khaled Cheikho and Elomar plead grounds of appeal that the verdict of guilty is unreasonable and cannot be supported having regard to the evidence (Grounds 1 and 4 respectively). In Khaled Cheikho's Notice of Appeal that ground is particularised as follows: "i. The evidence was not capable of establishing beyond reasonable doubt that the appellant was a party to any alleged conspiracy, or, ii. Alternatively, the Crown was unable to exclude the reasonable possibility that more than one conspiracy existed during the period alleged in the indictment."

Khaled Cheikho pleads the following additional grounds of appeal numbered as follows: "2. A miscarriage of justice was occasioned by the Crown prosecutor's submissions that: i. the appellant was complicit in the acquisition of ammunition by the alleged co-conspirator Mazen Touma, ii. the appellant's role in the alleged conspiracy was one of leadership, even though these inferences were not available on the evidence and were highly prejudicial; 3. A miscarriage of justice was occasioned by the Crown prosecutor's use of rhetorical question during his closing address, which had the effect of, firstly, inviting the jury to speculate and, secondly, impermissibly shifting the burden of proof; 4. His Honour erred in refusing to dismiss the charge of conspiracy in accordance with s 11.5(6) of the Criminal Code (C'th); 5. His Honour erred in permitting the Crown to lead evidence of so-called extremist material i. in the absence of a tendency notice, as required by s 97(1) Evidence Act 1995; and ii. in circumstances where the probative value of the evidence did not substantially outweigh the prejudicial effect, as required by s 101(2) Evidence Act 1995; 6. His Honour erred in failing to direct the jury that it had to find beyond reasonable doubt that the appellant was [a] member of the conspiracy at the time of the commission of the overt act, found by the jury to have been committed in furtherance of the agreement, as required by s 11.5(2)(c) of the Criminal Code (C'th)."

On behalf of Elomar the following additional grounds are pleaded: "Ground 1 His Honour erred in admitting into evidence that category of evidence referred to in the trial as the 'Melbourne evidence'". Ground 2 His Honour erred in admitting into evidence the acts and declarations of the alleged co-conspirators which were not in furtherance of the conspiracy. Ground 3 His Honour's directions with respect to characteristics 3 and 4 were unfair and unbalanced and constitute a miscarriage of justice. Ground 4 The verdict of the jury is unreasonable and cannot be supported having regard to the evidence."

The reference in Ground 3 to "characteristics 3 and 4" was a reference to s 100.1(3) of the Code, which provides as follows: "100.1(3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person's death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public." (Sub-section (3) is an exclusionary provision. If an action falls within any of the categories mentioned, it does not come within the definition of "terrorist act". This will be considered below.)

In the context of the grounds of appeal, it is apposite (because the issue arises more than once) to note the following. Section 5 of the Criminal Appeal Act is the statutory authorisation for appeals against conviction of criminal offences. Section 5(1) provides: "5 Right of appeal in criminal cases (1) A person convicted on indictment may appeal under this Act to the court: (a) against the person's conviction on any ground which involves a question of law alone, and (b) with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person's conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, and (c) with the leave of the court against the sentence passed on the person's conviction." Section 6 sets out the basis on which this Court may act on an appeal. Section 6 provides: "6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. (2) Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered. (3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

The grounds upon which this Court must allow an appeal are, therefore: (ii) that the verdict of the jury cannot be supported having regard to the evidence; (iii) that there was a wrong decision on any question of law; (iv) that there was a miscarriage of justice.

Rulings on questions of procedure, and rulings on the admissibility of evidence, are decisions of law, and may be challenged as errors of law under the third of the specified grounds. To the extent that a ruling is said to be erroneous, that issue must be determined in the light of the circumstances that existed, and were known, at the time of the ruling. It cannot be said that a ruling involved error of law by reason of events or circumstances that arise subsequently.

In this case, many rulings on the admissibility of evidence were made before the jury trial commenced. A jury trial is frequently fluid; circumstances change, subsequent events may cast a different light on evidence quite properly ruled to have been admissible. Those changed circumstances do not render an earlier ruling erroneous in law. They may indicate that, by reason (for example) of changed circumstances, an earlier ruling has given rise to a miscarriage of justice - the fourth of the specified grounds.

It is important that those framing grounds of appeal focus upon whether they assert error in a particular ruling (whether on evidence, or procedure); or whether they assert that, in the changing and evolving circumstances of the trial, an otherwise correct and proper ruling can be shown to have caused a miscarriage of justice. The two grounds are separate and distinct.

In respect of more than one of the grounds of appeal pleaded in this case, the submissions in support have not adequately delineated between the two.

These grounds concern the Melbourne evidence, both as a whole, and with respect to one specific aspect. The nature of the Melbourne evidence has been set out above at [127]-[151]. It will be recalled that, at trial, all appellants sought the exclusion of the Melbourne evidence. Whealy J declined to exclude it: Baladjam [No 19].

Two aspects of the Melbourne evidence call for specific mention. One was the television interview with Benbrika, broadcast on the 7.30 Report on 4 August 2005. The content of the interview is set out in more detail at [141]-[143] above.

The second aspect to be mentioned specifically is the evidence of "the maximum damage conversation", also set out in more detail above at [133]. This evidence is not only part of the Melbourne evidence as a whole, it is also, separately, the subject of Ground 2 of Hasan's appeal, and of specific grounds in each other Notice of Appeal.

All of this evidence was the subject of pre-trial rulings, and was determined to be admissible in the circumstances as they were known at that time: Baladjam [No 19]. However, the members of the Melbourne group were, during the trial, identified by first names only and Benbrika was referred to as "Sheikh Bakr".

The Melbourne group were charged with offences against Pt 5.3 of the Code. Their trial commenced in Melbourne on 5 February 2008, well before the date on which the trial of the appellants commenced. The commencement of the Melbourne trial, in particular the lengthy opening by the Crown prosecutor, attracted a degree of media attention, resulting in only partially successful applications for suppression orders (see [34] above). The Melbourne trial concluded with verdicts (convicting some of the Melbourne accused) in September 2008, about six weeks before the commencement of the trial of the appellants. The verdicts attracted a degree of media attention.

As it happened, the recording of the 7.30 Report interview with Benbrika was played to the jury on 28 January 2009. Although it had been suggested that only a sound recording might be played, or a transcript provided, this was rejected on the basis that a proper assessment of Benbrika's persona was important. A few days after the recording was played, on 3 and 4 February 2009, those of the Melbourne group who had been convicted were sentenced. Again, the sentencing attracted a degree of media attention. Some reports contained images of Benbrika. Some of these may have been taken from the video of the 7.30 Report interview, or at least appeared to be very similar.

Accordingly, on 11 February 2009 all appellants applied for discharge of the jury, on the stated basis that what was said to be widespread publicity following sentencing irretrievably damaged their chances of being afforded a fair trial. Essential to the reasoning was that, notwithstanding the limitation on the identification of the Melbourne men maintained in the evidence in the Sydney trial, it was likely that jurors would have taken an interest in the media reporting, and made the connection between "Sheikh Bakr" and Benbrika. In those circumstances, it was argued, there was a real risk that the appellants would be prejudiced by the evidence of their association with the Melbourne group, especially Benbrika and, to a lesser extent, Joud. That Whealy J had declined a request to have the evidence of the 7.30 Report interview limited to a transcript, or audio without the visual image of Benbrika, enhanced the likelihood that some jurors would make the connection. Underlying this was the proposition that the jury would or might, in effect, transfer the guilt of the Melbourne men to the appellants.

The application for discharge was supported by volumes of copies of reportage produced as a result of assiduous searches of print, television, radio and the internet.

On 6 March 2009 Whealy J refused the application, giving reasons for that decision: Elomar [No 12].

It is not entirely clear, but it seems likely that what was sought was, in effect, deferral of the trial until the publicity concerning the Melbourne convictions and sentences had subsided. We draw that inference because there is no mention in the judgment of an application for a permanent stay of the prosecution, and because the submissions made on behalf of the appellants (as recorded by Whealy J) urged that it was likely that, as a result of the publicity concerning the Melbourne sentences coinciding with the Sydney trial, members of the jury would have had a heightened interest in what might otherwise have passed them by, and therefore made the connection between the Sydney accused and the Melbourne accused who had, by then, been convicted. That would tend to suggest acceptance that the damaging publicity would be short-lived, and would not impact adversely on a later trial.

We return now to the grounds as pleaded. All appellants rely on the ground (Ground 1) pleaded on behalf of Hasan. It will be observed that (except as pleaded in Ground 2, which specifically challenges the admission of "the maximum damage conversation", and except as pleaded on behalf of Elomar), the ground is not so formulated as to challenge the admission of the Melbourne evidence. Rather, the ground pleaded on behalf of the other appellants asserts: (i) that the "large scale publicity" following the conviction and sentencing of the Melbourne group, in the context of the admission of the evidence of Benbrika's interview on the 7.30 Report, caused a miscarriage of justice; and (ii) that, in those circumstances, Whealy J erred in declining to discharge the jury when application was made to him to do so on 11 February 2009. 180 So far as the admission of the evidence goes, the appellants (other than Elomar) challenge only the decision to admit the evidence of "the maximum damage conversation". On behalf of Elomar, however, express challenge was made to the decision to admit the whole of the Melbourne evidence.

Three issues therefore arise under these grounds. Logically, they fall to be determined in the following sequence: If that question is determined favourably to the appellants, a subsidiary issue arises as to the consequence of that determination. A conclusion that, in the circumstances, the convictions represent a miscarriage of justice will, of course, result in the quashing of the convictions. That will result in one of two possible consequential orders: entry of verdicts of acquittal, or an order for a new trial. If the evidence of "the maximum damage conversation" was properly admitted: It is to be noted that there is no complaint about the directions given with respect to the Melbourne evidence.

For the purposes of considering issue (i), it may be assumed that all of the Melbourne evidence was properly admitted.

It is relevant to note that the impact of the Melbourne trial was not unexpected. In written submissions provided to Whealy J with respect to the issue of the admissibility of the Melbourne evidence, senior counsel who appeared for Hasan at trial described the publicity relating to the Melbourne trial as "highly inflammatory", and argued: "There is a real risk that the jury will misuse the evidence by drawing a connection between the two groups that is not borne out either by the Crown case theory or the evidence. The real risk of unfair prejudice is particularly evident in the circumstances of this case where the trials are proceeding at the same time, albeit the Melbourne proceedings are at an advanced stage. Judicial direction cannot cure the real risk of unfair prejudice and will more likely reinforce the prejudice by drawing attention [to] the subject matter." Attention was drawn to the fact that the interviewee had said that he had six children (and another expected), and that the media reporting of Benbrika's sentencing identified him as a father of seven. There was also mention of the parallels between the national origin of the interviewee (Algeria) and reporting that Benbrika was of Algerian origin. (In fact, the trials did not proceed at the same time. The Melbourne trial had concluded before the Sydney jury was empanelled, although counsel was not to know that at the time this issue was argued and determined, some months before the Sydney jury was empanelled. The only media reporting that coincided, temporally, with the trial of the appellants was the reporting of the Melbourne sentencing.)

It was in recognition of the apprehension of a risk that the Sydney jury would draw a connection between the individuals the subject of the Melbourne trial (particularly Benbrika) and the Sydney accused, that identification of the Melbourne individuals was limited. Moreover, both Whealy J in Sydney and Bongiorno J in Melbourne were astute to exercise caution with respect to publicity emanating from the Melbourne trial.

As we have mentioned, a volume of material taken from various media sources was presented as evidence of the extent and nature of the publicity concerning the Melbourne trial. That is what is described in Ground 1 as "large scale publicity concerning the Melbourne proceedings".

However, Whealy J made a somewhat different assessment. Whealy J referred to that in a number of passages in the judgment. These references are: "46 Fourthly, it is fair to observe, as I predicted in February 2008, that the publicity generated by the Melbourne proceedings has diminished considerably, in relative terms, as the months have passed. In practical terms, it might be observed that it has dwindled considerably as a news item of major interest. For example, at the time of the order I made in February 2008, there had been a massive amount of publicity focusing upon the three-week opening by the Crown of the evidence that was likely to be led in the Melbourne trial. As it turned out, that publicity occurred some eight months before the jury in the Sydney trial was empanelled. In that sense, it did not pose any real problem for the commencement of the Sydney trial, although potential jurors would have been possibly aware that there was a terrorism trial proceeding in Melbourne. 47 The verdicts of the Melbourne jury were brought in during September 2008. Again, at that time, there was a brief flurry of publicity, but it was markedly less than the publicity that had accompanied the opening of the trial. The sentences were imposed on 3 February 2009 and, as I shall later demonstrate, the publicity surrounding the sentence had very considerably diminished by this time. Essentially, it demonstrated itself in news bulletins on 3 February, newspaper articles on the 4th and Internet publications on those two days. Although news bulletins appeared on both those days, it is clear, as I shall point out, that the scope of the publicity was very significantly less than it had been at other times during the year. In general terms, the topic had been well and truly relegated away from front headline status."

His Honour then mentioned in some detail the classes of evidence collected, and added: "49 Not content with this amount of research, at the hearing of the application, the defence by then had been able to assemble some further material that had, after further exhaustive search, been discovered. The 'second' volume contained first a list of Google links, that is to say, links searched for and organised by Google on 3 and 4 February. The majority of these were references to links in far away countries: Asia, America, South Africa, Europe and beyond. The second category in volume 2 were a few further Internet reports, principally on 3 and 4 February 2009 (although some were anticipatory of the sentence being dated 2 February 2009). I shall refer to these as the volume 2 Internet material. Finally, I was handed up one Internet extract from the website www.theage.com.au dated 4 February 2009 and a wikipedia entry basically dating from 2005, but with modifications as at 3 February 2009."

Later in the judgment his Honour posed the question: "Is there a clear connection demonstrated by the publicity between the Melbourne proceedings and the present proceedings?" In the context of considering this question, his Honour alluded again to the extent of the publicity. He said: "105 The publicity surrounding the sentencing was brief, muted, and did not assume any particular significance in any broadcast or news item. Generally speaking, the matter was only mentioned on the day of sentencing, or, in the case of newspaper reports, on the following day. Thereafter, other news has completely swallowed the topic up and it has not been mentioned again. In the days immediately following the sentencing, the media focused on major issues, such as the gloomy economic situation and then the terrible bushfire catastrophe in Victoria. 106 My firm view is that the entire topic of the Melbourne sentences came and went with very little fuss or attention. I watched the jury carefully on the day after the sentences and I observed no indication that their usual diligence in listening to the evidence was in any way distracted or altered from that which it had been prior to the imposition of the Melbourne sentences. No juror has sent me a note, or raised with me any question about the Melbourne sentences. At the request of counsel, I gave a brief direction to the jury on 4 February 2009, reminding them that they were to pay heed only to the evidence in this trial. This was said to be in conformity with my original instructions and their usual practice. The members of the jury indicated by their demeanour that they understood this direction perfectly. The trial has now continued for some weeks since the Melbourne sentences were pronounced. The jury has continued to go about its business carefully and apparently quite unperturbed by any aspect of the Melbourne matter. 107 In all the circumstances, having considered the facts of the argument carefully, I have come to the conclusion that the jury would not have inevitably made the connection between the Melbourne offenders and the Melbourne persons mentioned in this trial. I acknowledge, however, that there might have been some minor potential for that occurring. But, overall, I consider it most unlikely that any such connection would have occurred to jurors or would, in fact, have been made. Overall, the methodology employed by the defence in assembling material to suggest that the jury will have made a connection between the two trials is flawed, at least in two respects."

The two respects in which Whealy J found the methodology to be flawed were: (i) that the assembly of media material was excessive, producing an array of material well beyond what might realistically have come to the attention of any individual juror; and (ii) the defence approach incorporated the knowledge of the appellant's legal representatives of the connection between the two trials, and imputed (without foundation) that knowledge to the jury.

The more realistic view, his Honour concluded, was that the reporting was such that a juror or jurors may have become fleetingly aware of the Melbourne sentences, but the jury were unlikely to have pursued any link.

Contained in the passages extracted above are significant findings of fact made by Whealy J concerning the extent and potential impact of the reportage of the Melbourne trial, verdicts, and sentences.

That he considered "most unlikely" that members of the jury would have made the connection between the Melbourne group and the appellants was not the only factor that moved Whealy J to decline to discharge the jury. He added that "the Melbourne evidence" was, in reality, a very small part of the overall Crown evidence. The trial at that point had been proceeding for over four months. The jury had by then heard and seen a great deal of evidence. His Honour said: "109 ... The Melbourne evidence has not been of any special significance. Nor has it been singled out from the vast body of evidence, of which it forms but a fraction. The ABC interview was shown in less than half an hour. It was not sensational evidence, simply one man expressing his opinion to an interviewer." He considered that facts such as the number of children the interviewee had were "completely incidental", and that the focus of the interview was on the opinions expressed by the man the jury knew as "Sheikh Bakr".

As his Honour observed, a substantial number of further witnesses was then anticipated. He considered it not unfair to describe the Melbourne evidence as "but a fraction of this material". He said: "109 Its [the Melbourne evidence's] significance is of no greater dimension than the remainder of the other material relied on by the Crown. It is all part of a detailed and elaborate mosaic or pattern going to make up the circumstantial case to be relied on by the Crown. That mosaic, including the fragments represented by the Melbourne evidence, will not fall to be considered in its entirety until the passage of a further four or five months. By that time, the publications ... will be a distant memory and their impact, slight as it was likely to have been, if there had been any impact at all, will have been consigned to the oblivion inevitably awaiting 'yesterday's news'."

The final matter he took into account was the extensive directions already given to the jury concerning the need to determine the issues on the basis of evidence given in the trial, and the faith placed by the criminal justice system generally in the adherence of juries to those directions.

What his Honour anticipated in Elomar [No 12] at [109] came to pass. The trial did proceed, over a number of months. A great deal of evidence was heard and seen by the jury.

The submissions made on behalf of Hasan, and adopted on behalf of the other appellants, were to the effect that Whealy J had underestimated ("downplayed") the significance of the publicity by failing to give real weight to certain factual matters, and the combination of those factual matters. These were identified as (we paraphrase and summarise):

It not infrequently happens that an accused person contends that, by reason of extraneous information in the public arena that might come to the attention of potential members of a jury, a criminal prosecution ought to be stayed, either permanently or temporarily. Similarly, where such a contention fails to achieve the result sought, a subsequent conviction is said to represent a miscarriage of justice and ought to be set aside. Most frequently, although not invariably, the extraneous information is pre-trial publicity concerning the subject matter of the trial, or the individual accused.

At the heart of these cases, however framed, is a collision between two important public interests. One is the right of a person accused of crime to be afforded a fair trial. That is not only a private interest, it is also an important public interest. The other public interest is in the due prosecution of individuals alleged to be guilty of criminal conduct.

Examples of such cases were given by Spigelman CJ in R v Jamal [2008] NSWCCA 177; 72 NSWLR 258 at [16].

Shortly after the decision in Jamal, the issue came again before this Court: see Skaf, Bilal v R; Skaf, Mohammed v R [2008] NSWCCA 303. In that case, concerning allegations of very serious sexual offences, it was acknowledged that the offences and the trials had attracted "very considerable publicity", all of it unfavourable to the accused. The publicity was described as: "21 ... extensive, prominent and continued for a significant period of time." Some of it was also described as "excessive". Before the trial, an application for a permanent stay on the ground of adverse publicity had been made and refused. The refusal was the subject of the first ground of appeal. Another ground complained of a specific article published during the course of the trial, which had also been the subject of complaint during the trial. That article did not specifically refer to the then accused. This Court (McClellan CJ at CL, Hidden and Howie JJ) dismissed the appeal, applying the principles to which we are about to refer.

A slightly different class of case is exemplified in The Queen v Glennon [1992] HCA 16; 173 CLR 592. There, a Roman Catholic priest was charged in Victoria with various sexual offences against children. Committal proceedings attracted extensive media attention. A prominent media commentator, on three occasions, broadcast attacks on the priest, asserting publicly that he had (as was the case) been previously convicted of sexual impropriety with a child, and, on another occasion, similarly charged but acquitted. The broadcasts were sufficiently serious as to result in the commentator's conviction for contempt, in respect of which he eventually served a short term of imprisonment.

An application by the priest for a permanent stay of proceedings failed; the priest went to trial and was convicted. An appeal against the conviction was allowed by the Victorian Court of Appeal sitting as the Court of Criminal Appeal, which entered a verdict of acquittal. The basis for that decision was that the broadcasts, revealing the priest's prior conviction, had created a substantial risk that some members of the jury would have been aware of the conviction, rendering the trial unfair.

The Crown sought and was granted special leave to appeal to the High Court, which (by a narrow majority) upheld the appeal and reinstated the convictions. It was in that context that the High Court laid down the relevant principles. Those principles are applicable to applications for a permanent stay, and appeals against conviction, where the ground is that prejudicial material has, or may have, come to the knowledge of jurors or potential jurors.

The starting point lies in a 1980 decision of the High Court (Barton v The Queen [1980] HCA 48; 147 CLR 75 at 111 and adopted by Mason CJ in Jago v The District Court of New South Wales [1989] HCA 46; 168 CLR 23), as follows: "To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'." That passage, however, is directed only to whether the prosecution should be terminated with no trial to take place. It says nothing about the principles applicable to determining whether a miscarriage of justice has occurred when a trial has taken place.

The expectation that persons accused of crime will be brought to trial: "... requires that a conviction be quashed as unsafe and unsatisfactory only where the materials justify a conclusion that there was a likelihood or substantial risk of prejudice arising from pre-trial publication where the conviction is challenged on that ground." (Glennon, per Mason CJ and Toohey J at 605) Their Honours went on to say: "And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial." (at 605-6)

Their Honours also recognised the faith necessarily placed in the integrity of the judicial system, and of individual jurors in adhering to the oath or affirmation they take at the commencement of a trial. They said: "The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence ... To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge." (at 603)

Brennan J (as he then was, and who agreed in the result with Mason CJ and Toohey J) said: "Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced ..." (at 614, internal citation omitted)

There have been many statements to similar effect. For example, in Gilbert v The Queen [2000] HCA 15; 201 CLR 414, McHugh J said: "31 ... Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials."

Two additional matters must be mentioned. The first is that, in Glennon, the broadcasts were made more than five years before the trial that eventually took place. In Skaf, the most recent publication (except one) was six months before the trial. The second thing to note is that, in both Glennon and Skaf, what was broadcast was directly about the person accused; in the case of Glennon, it revealed his prior conviction; in the case of Skaf, it contained a great deal of lurid material about the offences alleged against the accused.

In the present case, some of the media publicity took place during the currency of the trial. However, the publicity of which complaint was made included reports of the opening of the Melbourne trial - eight months before the jury was empanelled in the Sydney trial; evidence in the Melbourne trial - which was completed before the commencement of the Sydney trial; reports of the convictions - six weeks before the commencement of the Sydney trial; and the sentences. The assertion that the jury in the Sydney trial would have had a heightened interest in and awareness of the Melbourne proceedings has to be seen in that light. It is only the reporting of the sentencing that could realistically be said to have had any significant impact on the jury. As mentioned above, Whealy J's factual observations about the extent of that publicity were not put in issue.

Even more importantly, the reporting of the Melbourne sentencing did not (by contrast with the facts in Glennon and Skaf) directly relate to any of the appellants. It related to individuals with whom they were said to have had a close connection, and from whom they were said to take spiritual guidance. Those individuals were not identified by name in the trial. The argument depends on the proposition that the jury would have made the connection between "Sheikh Bakr" and the members of the Melbourne group referred to by first names only, and the persons convicted in the Melbourne trial. It is not at all established that that was so, or likely.

If the jury did make the connection, the fact that the Melbourne group were committed to violent Jihad was the very basis for the tender and admission of the Melbourne evidence. The fact that they were then found to have put that commitment into effect would have come as no surprise to the Sydney jury.

Whealy J considered that it was unlikely, having regard to the precautions taken in the trial, that the jury would have made the relevant connection. Even if they had, however, the appellants' argument depends upon another step - the probability that the jury misused the information that the Melbourne group had been convicted - by another jury, on other evidence - and allowed that to colour their own deliberations.

It is of some interest that the attention of this Court has not been drawn to the directions given to the jury by the trial judge with respect to the Melbourne evidence, nor to the directions generally given about the need to return verdicts based on the evidence in the trial, and to disregard extraneous material.

Also not mentioned in the submissions is the trial judge's characterisation of the Melbourne evidence as a tiny part of the overall Crown case - "a fraction". Focussing upon the media reporting for the purposes of this ground of appeal is apt to give it an undue proportion. This Court is not in a position to assess precisely where and how the Melbourne evidence fitted into the Crown case as a whole, in terms of time taken up or its impact on the trial overall, as it proceeded. But the brief outline of the categories of Crown evidence at the commencement of these reasons supports the assessment of the trial judge, who was, of course, in a much better position to make that assessment.

We would answer the question posed in Issue (i) in the negative. The publicity surrounding the conviction and sentencing of the Melbourne group was not such as to require the discharge of the jury as requested following the sentencing; the subsequent convictions were not, on this basis, rendered a miscarriage of justice.

We therefore reject Ground 1 of Hasan's Notice of Appeal, and the corresponding grounds in each other Notice of Appeal.

Specific complaint is, on appeal, made about the admission of one aspect of the Melbourne evidence. This is the evidence of "the maximum damage conversation". This, it will be recalled, was a recorded conversation between Benbrika and Sharrouf in Melbourne on 23 February 2005. Benbrika is recorded as advocating joining a Mujahideen, and being prepared to die or be gaoled in the cause of Islam, and further advocating that, if adherents were to "die for Jihad", then it was necessary to do "maximum damage" - maximum damage to "their" buildings, and maximum damage to "their" lives. The relevant part of the conversation is set out in full at [133] above.

The argument concerning the Melbourne evidence took place in May 2008 and judgment was delivered on 28 May. This was well in advance of the jury being empanelled, and necessarily was based upon the evidence that was then anticipated. While the evidence actually called conformed fairly closely with what was anticipated, there were, not surprisingly, some variations and departures. For example, and relevantly to the present ground, at the time of the argument it was believed that the evidence would establish that Hasan was present during the conversation. That turned out not to be the case.

We mention this because the ground of appeal is that the evidence of "the maximum damage conversation" was wrongly admitted. Consideration of that ground of appeal necessarily focuses upon the decision in the light of what was known at the time of the decision: R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308.

Of course, if evidence has been properly admitted, based on information available at the time of determination, subsequent events may show that the admission of the evidence resulted in a miscarriage of justice. That, however, is a different ground of appeal (see [167] above) that has not been here invoked. The ground taken is that Whealy J was in error, on 28 May 2008, when he determined to admit the evidence: Baladjam [No 19]. To succeed on this ground of appeal, therefore, the appellants must establish that the decision was erroneous at the time it was made, and in the circumstances in which it was made.

Examination of the written submissions provided to Whealy J reveals that the specific emphasis now placed on "the maximum damage conversation" (as distinct from the Melbourne evidence as a whole) was not then present. In those submissions, "the maximum damage conversation" received some passing attention, but it was not isolated as an aspect of the Melbourne evidence that ought to be treated separately from other aspects. Generally, "the maximum damage conversation" was treated as standing or falling with the Melbourne evidence as a whole. Where reference was made to it, it was illustrative of what were said to be the problems with the Melbourne evidence generally. For example, in the written submissions filed before Whealy J for the purpose of the argument reference was made to what was called "category 2" evidence in the Melbourne evidence. "Category 2" evidence was evidence, including "the maximum damage conversation", of the interaction between Sharrouf and a number of the Melbourne accused, including Benbrika, and including the conversation presently under consideration. Even in those submissions, the subject matter went beyond the conversation of 23 February 2005.

What can be discerned from the written submissions at trial on behalf of the various appellants is that objection was taken to the Melbourne evidence as a whole. Essentially, the objections challenged the relevance of the evidence; if that challenge were successful, the evidence was simply inadmissible: see Evidence Act, s 56. Alternatively, in different ways, counsel invoked s 137 of the Evidence Act. Some subsidiary arguments were put. For example, on behalf of Elomar it was suggested that the evidence was, if admissible at all, admissible only against Sharrouf in order to show his state of mind. (Sharrouf, at that time, was one of the accused.)

The contention was, put simply, that, if the evidence were held to be relevant, its probative value was outweighed by the danger of unfair prejudice to the appellants. For the purposes of this ground of appeal, it is necessary only to consider that argument in respect of "the maximum damage conversation".

The Crown's submission, in brief, was that the evidence was relevant to establish the fact and the nature of the conspiracy and the intention of the appellants in the various activities that they undertook.

In contrast to the manner in which the submissions had been put, Whealy J dealt, at some length, and in some detail, with the evidence of "the maximum damage conversation", not as an item of evidence to which separate objection was taken, but as exemplifying the nature of the Melbourne evidence.

Whealy J referred to the arguments advanced, including an argument advanced on behalf of Elomar, that the evidence of the conversation was not "in relation to Sharrouf's advancement of the crime" and therefore not relevant to the existence and scope of the conspiracy. Nor, it was contended, could it be evidence of the state of mind of other accused because to use it in that way would be to use it for a prohibited hearsay purpose: see Evidence Act, Pt 3.2.

In respect of that and other arguments, Whealy J said: "105 In the first place, while the conversation may tell us something about Benbrika, it is not, in terms of the Evidence Act, an admission because Benbrika is not a defendant in the trial. Secondly, it may be, as [senior counsel for Elomar] has argued, that the conversation is relevant to Sharrouf's state of mind. For that matter, it may also be relevant to Hasan's state of mind. Arguably, Hasan was present in the room during this part of the conversation. On the other hand, there is no indication from the conversation itself to indicate that either Sharrouf or Hasan endorsed, adopted, or accepted the views expressed by Benbrika in the conversation. In regard to the state of mind of persons other than Benbrika present in the room, the conversation can be no more than a circumstantial fact bearing upon their respective states of mind, if that be relevant. Of itself, it would not prove a state of mind and the Crown does not necessarily rely upon it for that purpose." (In this paragraph an example of how things changed during the course of the trial can be seen. As mentioned above, at the time this judgment, Baladjam [No 19], was delivered, it was expected that the evidence would show that Hasan had been present. That was, at the end of the trial, abandoned by the Crown.)

Whealy J went on to say: "107 The correct starting point is to examine the evidence to determine whether, if it were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding ... The Crown wishes to argue that these activities took place in the context of the accused generally receiving advice and inspiration from Benbrika, he being a person who supported and promoted violent jihad as part of his preachings in relation to the theology of Islam. ... 109 Applying the Evidence Act test of relevance to the conversation, in the light of the manner in which the Crown will contend that the Melbourne evidence generally may be used in the trial, it will be seen that it is the relationship itself between Benbrika and the accused that brings about a situation where the conversation may properly be regarded as relevant. The relationship is one evidenced by the duration, frequency and content of the association between Benbrika and many of the accused on the other. It is that relationship, being one of religious and spiritual guidance, that makes relevant the fundamentalist attitudes expressed both publicly and privately by Benbrika. The relationship is one of spiritual guidance in connection with his views on the dictates of Islam. To Benbrika, jihad is a fundamental precept of his religion. This he makes clear in the interview in the 7.30 Report on the ABC in August 2005. He is an admirer and supported [sic] of Osama bin Laden. He does not tolerate other religions. Benbrika is what sections of the media have loosely described as 'a fire brand cleric'. Tacitly, he appears to approve of the September 11 destruction of the Twin Towers and the loss of American civilian lives. He is reluctant to ascribe blame to Al-Quaeda, but if they were the perpetrators, their actions were justified. 110 It is clear that the relationship does not prove by itself the existence and scope of the alleged conspiracy. Nor does the conversation. The conversation, and indeed, the relationship, are but part of an overall circumstantial case that includes the actions of the Sydney accused themselves in ordering laboratory equipment, ammunition and other materials arguably connected with preparation for a terrorist act or acts. It includes as well their possession of extremist material supporting jihad. The nature of the association, in my opinion, is relevant as a circumstantial fact, in proof of the existence and scope of the conspiracy. The accused are men with strong religious views about their faith. They hold strong views about events relating to Muslims in the Middle East and elsewhere. They are disconcerted by the attention paid to them by police and other authorities. They look to Benbrika as a religious leader. ... 112 ... It is the nature of the relationship that makes the evidence of Benbrika's public and private espousal of violent jihad relevant to the facts in issue, and especially to the existence and scope of the conspiracy ..."

His Honour repeated that the evidence of "the maximum damage conversation" was no more than a piece of circumstantial evidence; he rejected the notion that it was tendered for a hearsay purpose, and added that it was not tendency evidence. He accepted the Crown submission that the evidence was: "114 ... at least relevant as going to proof of the existence and scope of the alleged conspiracy ..."

Put shortly, Whealy J found the evidence of "the maximum damage conversation" to be relevant, and that its probative value was not outweighed by the danger of unfair prejudice to the appellants, or any of them.

In the written submissions filed in this Court with respect to this ground, extensive reference was made to what was said by Whealy J in the summing up. These references were misplaced and irrelevant. That is because the merit of the ground has to be assessed on the basis of what was before Whealy J in May 2008. The admissibility of the evidence cannot be determined by reference to what was said in the summing up.

The written submissions in this Court appeared to run together the two issues - relevance and the balance required by s 137 of the Evidence Act.

Section 137 is in the following terms: "137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

The nub of the ground of appeal, as put forward in the written submissions is, it seems to us, this: when the evidence on which the Crown proposed to rely is properly analysed, it can be seen that Benbrika "played a fairly insignificant role in the affairs of the Sydney accused", there was no evidence that he was a financier, that he was the supplier of extremist material, or that he was actively involved in assisting the appellants to obtain the laboratory equipment from Haines. If Benbrika played "a fairly insignificant role in the affairs" of the appellants, then the probative value of the evidence of his expression of support for doing "maximum damage" was limited. By contrast, the danger of unfair prejudice was high. Indeed, the evidence was described in written submissions as "amongst the most sensational evidence in the trial".

For our part (admittedly and necessarily looking at the evidence retrospectively, not prospectively, but, as mentioned above, the evidence emerged substantially as anticipated) we do not see Benbrika's remark about "maximum damage" as more "sensational" than much of the video footage (see Ground 5) or the accumulated extremist material, or the accumulated instructional material concerning bomb manufacture.

However, in oral argument, senior counsel also contended that the evidence of "the maximum damage conversation" was truly characterised as tendency evidence, and therefore subject to the stringencies of s 97 and s 101(2) of the Evidence Act, and therefore not admissible unless the conditions prescribed by those legislative provisions were met. Since the characterisation of the evidence as tendency evidence was not recognised at trial the necessary s 97 and s 101 determinations had not been made.

Three questions must therefore be addressed:

By s 56 of the Evidence Act, evidence that is relevant in a proceeding is admissible, and evidence that is not relevant is inadmissible. The admissibility of evidence that is relevant is, however, subject to a number of qualifications provided throughout the Evidence Act.

By s 55 of the Evidence Act, evidence that is relevant is evidence that, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. The flaw in the appellants' argument is that it focuses only on "the maximum damage conversation", and isolates it from other evidence. The very point of a circumstantial case, as this was, is that it creates a mosaic of sometimes apparently tiny items of evidence, that, when put together, make up a whole picture. The tiniest fragment of evidence might, on completion of the mosaic, be shown to have significant relevance. It is a mistake, particularly in a circumstantial case, to attempt to determine the relevance of each individual item of evidence in isolation from all of the other evidence.

It is not to the point that, on the evidence, of the Sydney accused, only Sharrouf could be shown to have been present at the conversation. The point of the Crown evidence was that the Sydney accused, particularly Sharrouf, were closely associated with Benbrika and his group, and took spiritual guidance from them, especially Benbrika. The evidence was therefore relevant to show what Benbrika's attitudes were. It was also part of the case that the Crown proposed to make that each of the appellants had attitudes consistent with those attributed to Benbrika. That Benbrika advocated doing "maximum damage" in the cause of Jihad, or Islam, was capable of throwing light on what operated on the minds of the appellants in amassing the chemical products that they did, and the literature that they did.

For reasons which appear below, it is not correct to say, as was contended on behalf of the appellants, that the relevance of the evidence of "the maximum damage conversation" depended upon the drawing of an inference that Sharrouf had passed on Benbrika's comments, or that Benbrika had, on other, unrecorded, occasions, made remarks of the same kind to one or more of the appellants.

It was emphasised that Sharrouf's only response to Benbrika was to ask "Why?" and that this fell short of evidence that he (let alone the other appellants) shared or adopted the views expressed by Benbrika, and that that rendered the probative value of the evidence "minimal". That, in our opinion, is to misconstrue Sharrouf's query. The query came immediately after Benbrika said that Sharrouf should be careful and trust no-one and "I'm waiting any time to, for them to come ...". Sharrouf's query did not come immediately after "the maximum damage" remark. It was not addressed to that part of Benbrika's monologue.

Further criticism of the admission of this evidence concerned what was then known of Sharrouf's mental state. It will be recalled that Sharrouf was initially found unfit to be tried. It was agreed that he had been diagnosed as suffering from schizophrenia, depression, anxiety disorder and had a history of polydrug abuse. It was therefore argued that, even if the evidence of "the maximum damage conversation" could be seen as relevant to Sharrouf's mental state, these circumstances made it irrelevant to provide any foundation for an inference of the mental state of any of the appellants.

That might have some validity if the only relevance of the conversation was to demonstrate Sharrouf's state of mind. For reasons we have given, that was not the only relevance of the evidence.

It was, in our opinion, correct for Whealy J to hold that the evidence of "the maximum damage conversation" was relevant.

The answer to this question requires an assessment, first, of the "probative value" of the evidence, and secondly, of the danger of unfair prejudice. "Probative value" of evidence is defined in the Dictionary to the Evidence Act as: "...the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." The assessment of probative value, therefore, requires the identification of the "fact in issue" said to be affected by the evidence. In this case, as we have mentioned above, a good deal of the circumstantial material upon which the Crown relied to establish the conduct of the appellants was not in dispute. The most significant fact in issue in the proceeding was the state of mind of each of the appellants. In order to satisfy the definition of "terrorist act", as defined in s 100.1 of the Code (see [11] above), it was necessary that the Crown prove that the action with respect to which the appellants allegedly conspired was accompanied by an intention to advance "a political, or religious or ideological cause", and with the intention of "coercing, or influencing by intimidation" an Australian government or foreign country or intimidating the public or a section of the public. That fell to be proved by inference.

In those circumstances, the expressed attitudes of the leader of a group with whom the appellants associated, and from whom they (allegedly) took spiritual and religious guidance had the capacity significantly to affect the assessment of the probability of the existence of that fact. The evidence therefore had probative value to a significant degree.

The next question is whether it carried with it a danger of unfair prejudice that outweighed that probative value.

In our opinion, it did not. Indeed, to contend that it did is to contradict the submissions put on behalf of the appellants with respect to relevance. "The danger of unfair prejudice" is the danger that a jury might make improper use of the evidence. It was proposed, on behalf of the appellants, that evidence that comes within that category is apt to provoke an irrational, emotional or illogical response in the jury, or in the jury giving the evidence more weight than it properly deserves or otherwise misusing the evidence: Lodhi v The Queen [2007] NSWCCA 360; 179 A Crim R 470 at [140], R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 at [116], Regina v Duncan and Perre [2004] NSWCCA 431 at [246], R v Sophear Em [2003] NSWCCA 374 at [120] and R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520 at [252].

It is difficult to see how the jury might have a response of the kind described, or how it might have misused the evidence. The evidence was tendered to establish that the person from whom the appellants sought and obtained spiritual and religious guidance held and expressed extremist views, the inference being that those views influenced or were shared by the appellants. That does not create unfair prejudice.

Whealy J was correct to decline to exclude the evidence under s 137 of the Evidence Act. We would add, although it does not strictly arise, that there is no basis for a conclusion that, notwithstanding that the ruling to admit the evidence was correct at the time it was made, subsequent events meant that the admission of the evidence gave rise to a miscarriage of justice.

Tendency evidence is evidence tendered to establish that a person has or had a tendency to act in a particular way or to have a particular state of mind. It is evidence that is tendered in order to provide the foundation for an inference that, because the person has or had that tendency, it is more likely that he or she behaved in a particular way, or had a particular state of mind at a time or in circumstances relevant to the issues in the dispute: see Gardiner v The Queen [2006] NSWCCA 190; 162 A Crim R 233 at [124]. Tendency evidence is considered in more detail below: see [344].

There was no written submission put before Whealy J to the effect that the evidence of "the maximum damage conversation", nor, indeed, the Melbourne evidence generally, was tendency evidence. Whealy J said, in passing, that it was not tendency evidence, but merely "a circumstantial fact" which, together with other material would be assessed by the jury in its overall evaluation of the Crown case.

No written submissions were, on appeal, directed to the proposition that the evidence of "the maximum damage conversation" is properly to be seen as tendency evidence. Indeed, only glancing reference was made to it during the course of oral argument. It was merely submitted that the finding was wrong, and that the evidence was tendered for the purpose of establishing that Benbrika had a tendency to talk about "maximum damage".

It will be apparent, from what we have said above, that we reject this contention. The purpose of the tender of the evidence was not to establish that Benbrika had a tendency to use that phrase. The evidence was tendered to establish his attitudes, and accordingly the behaviour he encouraged in the appellants.

In any event, even if that were not so, we reject this aspect of this ground of appeal. By s 97 of the Evidence Act, tendency evidence is not admissible unless two pre-conditions are satisfied. The first is that reasonable notice of the intention to adduce the evidence has been given. The second is that the court comes to the view that the evidence, either by itself or having regard to other evidence adduced or to be adduced by the tendering party, has significant probative value.

Since this issue was not raised before Whealy J, it can hardly be said to have been an error for him not to reject the evidence under s 97 of the Evidence Act. Moreover, it is plain that adequate notice was given of the Crown's intention to adduce the evidence (although not characterised as tendency evidence). Further, had the issue been raised, it is apparent, from what Whealy J said in his comprehensive judgment, that he would have concluded that the evidence had significant probative value. No complaint can be made of his Honour's failure to address the s 97 questions in the absence of their having been put to him on behalf of the appellants.

We reject Ground 2 of Hasan's appeal, and the corresponding grounds in the other Notices of Appeal.

As mentioned above, only Elomar took this ground. However, in neither the written nor the oral submissions was it argued that the category of evidence known as "the Melbourne evidence", as a discrete category, was wrongly admitted. The submissions, both written and oral, addressed a different category of evidence (although one that encompassed at least some of the Melbourne evidence). That category is, as identified in Ground 2, evidence of "the acts and declarations of the alleged co-conspirators which were not in furtherance of the conspiracy". This evidence was not the same as, or co-extensive with, the Melbourne evidence. Indeed, it refers to evidence (of acts and declarations of alleged co-conspirators) that necessarily excludes the Melbourne evidence. That is because the Melbourne group were not alleged to have been involved in a conspiracy with the appellants, and therefore could not be "alleged co-conspirators".

There being no argument addressed to Ground 1 of Elomar's Notice of Appeal, we reject it. In reaching that conclusion, we note that, in the written submissions filed on behalf of Elomar, Grounds 1 and 2 were argued together. There is a logical inconsistency in that. As will appear below, Ground 2 was concerned with "acts and declarations of the alleged co-conspirators". As we have said, it was always made plain, and seized upon by the Sydney accused, that the Melbourne group were not alleged to be co-conspirators with the Sydney group. Grounds 1 and 2 necessarily raise different and mutually exclusive issues.

Since the two grounds were argued together, however, it is convenient now to deal with Ground 2 as pleaded in Elomar's Notice of Appeal.

This ground is directed to a wide range of evidence contained in recorded conversations involving one or more of the appellants, the four Sydney accused who were not on trial with the appellants, and others.

Objection, on the same basis as is now argued, was taken before Whealy J, pre-trial, and is the subject of a judgment: Baladjam (No 38), delivered in August 2008. The evidence to which objection was then taken was identified by Whealy J in par [7]. It consisted of three large folders of transcripts of conversations of the accused with one another or with others, and the product of examinations of the appellants' computers and electronic devices. Whealy J was also asked, on the same basis, to reconsider his approach to the argument relating to the Melbourne evidence, the subject of Baladjam [No 19].

The computer material is not the subject of the present ground.

The actual evidentiary material to which the ground relates was not, in this Court, specified with any precision. It was referred to globally, as in the ground itself, as "evidence of acts and declarations of the alleged co-conspirators which were not in furtherance of the conspiracy". In his judgment Baladjam (No 38), Whealy J extracted some passages from the evidence there proposed to be tendered by the Crown. (Not all of the evidence to which Whealy J referred was, in the trial, led. However, the present ground complains of the decision to admit the evidence, and that decision must be evaluated in the light of the circumstances as they existed at that time. There is no separate ground of appeal that a miscarriage of justice arose as a result of any item or items of that evidence having been adduced.)

It may be taken, from the brief samples given by Whealy J in pars [11] to [19] of Baladjam (No 38) that the evidence in question is of the kind outlined at the commencement of these reasons. That shows that there was a great deal of evidence of recorded conversations, both telephone and face to face, in which one or more of the appellants took part, either with one another or with members of the Melbourne group, or with others. The conversations were capable of being seen as disclosing states of mind of the participants to the conversations, attitudes to Jihad, Islam, to martyrdom in the cause of Islam, hostility to western civilisations, to the wars in Iraq and Afghanistan, and much more. Some were capable of being interpreted as directly disclosing the intention of the participant or participants to take part in terrorist activity.

The argument put to Whealy J, rejected by him, and maintained on appeal, was this. Evidence of acts and/or declarations of the alleged co-conspirators are admissible only on one (or perhaps both) of two bases. The first is pursuant to "the co-conspirators' rule": Ahern v The Queen [1988] HCA 39; 165 CLR 87. The second is under the rules of evidence relating to admissions: see Pt 3.4 of the Evidence Act. Either way, the admissibility of the evidence is circumscribed. If it is tendered under the co-conspirators' rule, it is admissible only if the statements or acts are made or done "in furtherance of the conspiracy". If the evidence is tendered as admissions, it is admissible only against the individual who made the statement or did the act, unless it comes within s 87(1)(c) of the Evidence Act which, again, requires, as a pre-condition to admissibility, that it be said or done "in furtherance of a common purpose". (Section 87(1)(c) is set out and considered below at [287].)

Contained within the argument is the proposition that evidence of statements made by any accused is not admissible, unless the statements are made "in furtherance of the conspiracy". Specifically, evidence of such statements is not admissible to prove the existence and nature of the conspiracy.

The argument is flawed for a number of reasons.

First, it misunderstands the effect of the decision in Ahern.

The co-conspirators' rule dates back at least to the decision in The King and the Attorney-General of the Commonwealth v The Associated Northern Collieries (the Coal-Vend Case) [1911] HCA 73; 14 CLR 387, and adopted in Tripodi v The Queen [1961] HCA 22; 104 CLR 1.

In Tripodi, the Court (Dixon CJ, Fullagar and Windeyer JJ) said: "For upon a charge of conspiracy the proof of the crime may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment. When that is so evidence may readily be let in of what each party to the conspiracy alleged may do or say in furtherance of the common purpose ... When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case ... It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts."

With respect to the co-conspirators rule, the Court in Ahern (Mason CJ, Wilson, Deane, Dawson and Toohey JJ) said (we adopt the paragraph numbering system retrospectively and usefully assigned to High Court decisions by Austlii): "[7] ... Evidence of the acts or declarations of others led for this purpose [that is, as proof of the participation of an accused] will be led to prove the truth of the assertion or implied assertion contained in those acts or declarations. It would be excluded as hearsay or its equivalent were it not admissible upon some other basis. [8] That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others: Tripodi, [at 7]. Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business ... ... [17] In our view, the test adopted in Tripodi is the appropriate one. Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant ..." (italics added)

It is therefore correct to assert that, where evidence of a statement or conversation attributed to one accused is tendered against another accused pursuant to the co-conspirators' rule, it is admissible against that other accused only where (inter alia) it was said "in furtherance of its common purpose".

The flaw in the argument is to regard admissibility under the co-conspirators' rule as the only basis of admissibility recognised in Ahern. The argument also overlooks the important circumstance that the evidence was not, and never was, tendered under the co-conspirators' rule.

It is not correct to regard Ahern as authority for the proposition that acts, statements, declarations or conversations of one or more alleged conspirators are admissible against other alleged conspirators only if made in furtherance of the common purpose. Ahern expressly holds otherwise. The Court said: "[5] In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other."

The Court quoted from the judgment of Isaacs J in the Coal-Vend Case as follows: "... though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge."

Essential for the Crown to prove in a conspiracy trial (inter alia) are: (i) the existence of the conspiracy alleged; and (ii) the participation in that conspiracy of the various accused.

While recognising that certain items of evidence might be relevant to each of these, it is necessary to carefully delineate which evidence goes to prove the existence of the conspiracy, and which goes to prove the participation of any of the individual accused. But it is wrong to say, as was contended on behalf of Elomar, that, unless conversations or statements or acts are had or made or done in furtherance of the conspiracy, or of the common purpose, that evidence is not admissible against any accused other than the accused to whom it is attributed.

A similar argument was put to this Court in R v Louden (1995) 37 NSWLR 683. Allen J, with whom Newman J and Simpson J agreed, categorised that argument as "fundamentally wrong". The argument to which his Honour referred was, in essence, that the evidence would not be admissible on any ground other than that the conversations the subject of the evidence were in furtherance of the conspiracy charged.

In Louden, Allen J accepted that a good deal of the evidence there in question did not implicate the appellant, in the sense of proving his participation in the conspiracy. It was, however, circumstantial evidence of both of the existence and the nature of the conspiracy alleged. It was by other evidence that the appellant was shown to be involved.

The evidence the subject of this ground of appeal was not tendered under the co-conspirators' rule, and was not subject to the limitation that it be evidence of acts or statements in furtherance of the conspiracy.

To classify any particular item of evidence as "in furtherance of the conspiracy" may, in some cases, present difficulties. If it were necessary to make that decision in the present case, it would present particular difficulties, in the absence of any breakdown of the particular conversations to which objection is taken. Since the evidence was not tendered under the co-conspirators' rule, but was tendered for a different purpose, that question does not arise. The evidence was amply able to prove the existence and nature of the conspiracy.

The alternative submission was that the evidence could only be tendered as admissions (against the accused to whom it was attributed) and, by reason of s 87(1)(c) of the Evidence Act, was admissible against others subject to the same limitation, that the act or statement be done or made in furtherance of the conspiracy.

"Admission" is defined in the Dictionary to the Evidence Act as: "... a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and (b) adverse to the person's interest in the outcome of the proceeding."

The admissibility of evidence tendered as admissions is the subject of Pt 3.4 of the Evidence Act. Section 81 provides that neither the hearsay rule nor the opinion rule applies to evidence of an admission. For present purposes, the salient provision is s 87, which is in the following terms: "87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority, or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. (2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove: (a) that the person had authority to make statements on behalf of another person in relation to a matter, or (b) that the person was an employee of another person or had authority otherwise to act for another person, or (c) the scope of the person's employment or authority." (italics added)

Section 87(1)(c) of the Evidence Act is accepted as a statutory form of the co-conspirators' rule: R v Macraild (NSWCCA, 18 December 1997, unreported).

The argument however, proceeded on the basis that, unless the statements were made in furtherance of the conspiracy alleged, s 87(1)(c) of the Evidence Act operated to exclude them. For reasons given in relation to the argument concerning the co-conspirators' rule, the argument must fail. One way of identifying the flaw in the argument is to recognise that it perceives s 87(1)(c) as an exclusionary rule. It is no such thing. It is the converse. Section 87(1)(c) is an inclusionary rule. It specifically permits - and requires - the admission of evidence tendered as an admission made with authority where it was made in furtherance of a common purpose. That is evidence that otherwise would be excluded by the hearsay rule.

Section 87(1)(c) of the Evidence Act has nothing to say about the alternative basis of admissibility recognised in Ahern - that is, evidence going to the existence and nature of the conspiracy alleged.

In our opinion, Ground 2 of Elomar's Notice of Appeal must fail.

Ground 3 of Hasan's Notice of Appeal is concerned with the incident, at an early stage in the trial, the circumstances of which are broadly outlined above at [52]. It is necessary to set out more detail.

On 26 November 2008, about four weeks into the trial, the jury sent the judge a note, in the following terms: "On Thursday 19th November 4 jurors were followed to our car park (Parramatta Stadium). All 4 didn't enter our cars & waited until those people went to their cars (but we didn't see them enter or drive away). On Tuesday 25th November, 1 juror as she was turning out from the car park noticed that the same person from the week before was standing behind her car & and pulled out a note pad from her handbag & wrote something down & pulled out her phone & made a call. I am not normal (sic) paranoid, but this did cause me to park in a different location & this has caused the other jurors some concern. The lady has a head scarf & is located in the public gallery."

The clear inference was that at least the woman to whom the note referred had been making a note of the registration number of the juror's car.

After discussing the note with counsel in chambers, Whealy J directed the jury in the following terms: "Thank you, members of the jury, for the note you have sent me. As you would well appreciate, the subject matter of the note is clearly a matter of concern to the Court. You may be assured the Court takes the issue very seriously. What I want to do is this: I am going to refer the incident to the police for investigation and ask that a report be given to them. It may be that there is an entirely innocent explanation for the incident. I don't know. Just like you, I try to keep an open mind on all these things and that is the important thing to do. That might take a few days to examine. But, more importantly, I want to say to you that while it appears that, at least at face value, that the incident had something to do with the person who has been in court in the public gallery, there is not the slightest suggestion that this incident has anything to do with the accused at all. There is not the slightest suggestion that the incident has been prompted by the accused, has been suggested by the accused, has been encouraged by the accused. There is not the slightest suggestion that it has anything to do with the accused at all. If I may pick an analogy, you know yourself if you read in the paper that sometimes supporters of a club will misbehave at a match, and it is a sad thing when that happens, but it often has nothing to do with the club or the players. They have not sought it to be done or encouraged it. So hear what I say to you, and I want to stress it as much as I possibly can, it has nothing to do with the accused, and you should not draw any inference against the accused at all because of the occurrence of this incident. Your duty is to judge this trial impartially and on the evidence you hear in this court. I have said that to you a number of times, and I cannot stress too highly how important that is. So that when an incident of this kind happens, you have to put it out of your mind and you have to say to yourself: 'I will judge this case on the evidence I hear in court and nothing else.' These are not just empty words. They are words that you should deeply reflect upon, and I trust that all of you, having taken an oath or affirmation to decide this case according to the evidence will do just that. You should not allow this to be a distraction to you. It will be investigated, the court will take care of it, and you should put it out of your mind and simply concentrate on the evidence that is brought before you. Of course, if anything of a similar kind were to happen again, you should report it to me immediately. A prompt report would mean that I can take prompt steps. I trust that nothing of this kind will happen, but if it does, let me know and please do not hesitate to let me know. There are a number of practical steps I want to put in place today, and I think that they may take me a little while. There will be some further matters I have to deal with counsel arising out of the incident, and I think in all those circumstances, rather than keep you hanging around today, I will ask you to disperse for the day and to come back at 10 o'clock tomorrow morning. I am sorry that you lost a day. It was the last thing I wanted to happen, but these things happen, as I say, and we must take them in our stride. The important thing I want to stress to you is that this incident has nothing to do with the accused and you should not draw any inference adverse to these men arising from this incident, and you can be assured that I will have a look at the issue, about car parking, or where you park, and how you get here, and see from a practical point of view if I can protect you from any similar sort of incident happening again. I will be attending to that during the course of today and reporting back to you tomorrow. Thank you, see you tomorrow."

The "lady with the headscarf located in the public gallery" of the court was quickly identified as Elomar's niece. She had at times engaged with Elomar's counsel, in circumstances the jury may have been able to observe.

All counsel sought discharge of the jury. The Crown prosecutor, on instructions from the Director, did not oppose those applications. That was expressly because of the relatively early stage of the trial, which was anticipated to be lengthy, at which the incident occurred. It is of some interest that the Crown did not concede any apprehension about the effect the incident might have on the jury; rather, the Crown took a cautious approach out of concern for the views that a future appellate court might take.

Some additional information soon came to light (in the absence of the jury). The Crown prosecutor said that the woman in question had made derogatory comments to police, and had, during the evidence, made apparently hostile gestures to witnesses, and had made a particularly insulting remark to one of the prosecution legal team. Some of this may have been observable by the jury.

The suggestion that the woman had been making a note of the registration number of the juror's vehicle was said to have a particular poignancy. That was because, in recent days, evidence had been given that the execution of a search warrant at Baladjam's home revealed that he had in his possession a document recording makes, models and registration numbers of some vehicles.

Notwithstanding the position taken by the Director, Whealy J declined to discharge the jury: Elomar [No 4].

He made non-publication orders concerning the incident and the applications. Notwithstanding the non-publication orders, counsel reported that some media outlets did refer to the incident. The precise terms of the reporting were not before this Court.

There followed some discussion about what course should next be taken, his Honour favouring a course of directly asking the jury if they felt able to discharge their task as jurors impartially. He met opposition to this proposal, and ultimately took a slightly different course. He rejected a proposal that he examine the jurors individually, pursuant to s 55D of the Jury Act 1977 (NSW). (It may be noted, in passing, that s 55D does not authorise such a course in relation to an incident of the kind here in question. Section 55D authorises examination of a juror (or jurors) in order to determine whether he or she has "read, seen or heard prejudicial material published or broadcast during the trial".)

The course Whealy J took was to address the jury, which he did in the following terms (the following is taken from the written submissions filed on behalf of Hasan, to which no criticism was directed): "Good morning, members of the jury. Thanks for coming in. I have a task for you. In reference to the events mentioned in your note ... you will recall that I gave you a direction before you left court yesterday morning. It was a direction expressed in firm terms. But now I want to ask you, all of you, through your foreman, if I may, are you able to assure the court that, notwithstanding the events mentioned in your note, each of you is able to discharge his or her task as a juror in this trial impartially? This is a question that I need to ask of you and want to ask of you individually. I want you to feel that you can give a genuine and honest answer to it. Please understand that, if any of you feel that you can not approach the issues in this trial impartially, there would be absolutely no criticism of you if that were the view you took. So, what I'm going to do is simply hand the foreman the note. It is in an envelope. Because it may be easier for you to discuss among yourselves in the privacy of the jury room the contents of the note, I'm going to ask you, Mr Foreman, if you would not mind just sending me a note saying 'Yes' or 'No' in answer to my question. I will hand that note to you now. I will have a copy of it marked for identification as MFI 62. I will distribute copies to counsel."

The note handed to the jury read as follows: "Members of the jury, In reference to the events mentioned in your note MFI 61, you will recall I gave you a firm direction before you left the court yesterday morning. I want to ask you, all of you, through your Foreman, are you able to assure the court, that notwithstanding the events mentioned in your note, each of you is able to discharge his or her task as a juror in this trial impartially. I will ask you to retire to the jury room to consider this question which I have reproduced."

The jury retired as requested, and returned, providing a note in the following terms: "Your Honour, the jury has had a discussion regarding your note. The response is unanimous. Every juror remains able to discharge his or her task as a juror in this trial impartially. For the record, this is yes."

On 27 November 2008, Whealy J declined to discharge the jury and delivered reasons for his decision: Elomar [No 4].

Whealy J prefaced his reasons by noting that the jury empanelment process had been lengthy, extending over a week. Because of the anticipated length of the trial, it began with the summoning of an unusually large jury panel, which was, after personal applications had been dealt with, reduced to about 5 per cent of its initial number. Implicit in these observations was recognition of the logistical difficulties that would attend any necessity to recommence the trial. His Honour also observed that, in the four weeks over which the trial had been proceeding, his impression had been that all (15) members of the jury were "diligent, attentive and highly conscious of their duties as members of a criminal jury".

He then recorded the note from the jury and the directions he had initially given, before considering relevant authority. He expressed his satisfaction that the responses to the note, enquiring of the jury's self-assessed capacity to remain impartial, should be taken at face value, and that the face value was considerable. In other words, he accepted, as a matter of fact, that no member of the jury was compromised in their capacity to discharge his or her task as a juror in the trial.

His reasons for refusing to discharge the jury were encapsulated in a few paragraphs, as follows: "37 As I have said, I have taken into account all the matters put to me by the defence. I have come to the conclusion, after assessing those matters, that, in the light of the direction I have given the jury and the jury's reaction to it, I cannot, and do not, conclude that the parties, or the public, might entertain any reasonable apprehension that the jury might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the trial. 38 I have addressed this jury on a number of occasions on the need to bring an impartial and unbiased mind to the resolution of the issues involved in the proceedings. I am satisfied that the particular incidents, and the concerns expressed by the jury, in the light of the direction I have given, will not lead to the presence of bias or a lack of partiality (sic - impartiality) in the proceedings. I accept, however, that the ultimate test is an objective one and goes beyond this consideration. In that regard, in the light of the direction I have given and my overall evaluation of the circumstances, I have concluded, as an objective matter, that a fair-minded and informed observer would not reasonably apprehend a lack of impartiality on the part of any of the members of the present jury. 39 ... 40 The ultimate concern of the Court is to ensure a fair trial for the accused. Where the Court is convinced a fair trial can be had, and that no miscarriage of justice is likely, it would be quite wrong for the Court to discharge a jury simply because, for reasons not of substance but arising out of mere forensic or other expediency, the Crown has, effectively, been instructed to succumb to a defence application of this kind. The Court must respect the integrity of the institution of trial by jury, just as it must respect the jurors themselves."

The principles applicable to a decision to discharge or not discharge a jury following an irregularity in a trial were stated in Webb v The Queen; Hay v The Queen [1994] HCA 30; 181 CLR 41 as: "... whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially." (per Mason CJ and McHugh J at 53, per Brennan J at 57, per Deane J at 67, 71, and per Toohey J at 87)

There is no difficulty in the statement of principle. In some cases, there may be considerable difficulty in its application. In Webb, while all members of the Court agreed that the test was as stated, the Court divided on the result of its application: three members of the Court (Mason CJ, Toohey and McHugh JJ) concluded that a fair-minded observer in that case would not have had the relevant apprehension; two members of the Court (Brennan and Deane JJ) to the contrary.

The facts in that case were somewhat unusual. In the closing stages of a murder trial, one of the members of the jury impulsively presented a bunch of flowers to another person with the request that they be passed on to the mother of the victim of the murder. While various members of the Court considered that this gesture denoted a natural sympathy in the juror for the mother of the victim, the majority did not think that it denoted bias on the part of that juror.

In Crofts v The Queen [1996] HCA 22; 186 CLR 427, in a very different context, a majority of the Court (Toohey, Gaudron, Gummow and Kirby JJ) said: "No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact." (p 440)

In reaching his decision, Whealy J took into account:

He rejected a submission made on behalf of Khaled Cheikho that telling the jury that the matter might be referred to police for investigation was of itself prejudicial.

Whealy J balanced all relevant considerations and came to the view expressed in the paragraphs extracted above.

The submissions of the appellants were, in essence, as follows:

It was not, and could not have been, suggested that Whealy J made any error of law in deciding not to discharge the jury. He correctly directed himself with respect to the applicable test, and he correctly directed himself with respect to the relevant factual considerations. The decision he made involved a judgment and an evaluation of all relevant considerations.

The trial then proceeded. There is no evidence of any further incident such as to cause alarm or concern.

There is, it seems to us, a logical inconsistency in the submission (summarised at [317](4) above), that it was incorrect to ask whether the jury would have "blamed" the appellants for the incident, instead of asking whether there was a reasonable apprehension of bias. Unless it was contended (as it was) that the jury would "blame" the accused, or one or some of them, for the incident, or at least associate them with it, it is difficult to see how it could be said to result in bias on their part towards the accused. In any event, Whealy J was at pains to instruct the jury that they should not associate any of the accused with what had happened.

It is true that the trial was a high profile one, with, no doubt, a heightened level of awareness of issues such as cultural or religious tension. That was, indeed, the central theme of the trial. That does not warrant a conclusion that the jury would lose its objectivity.

His Honour was, in our opinion, fully entitled to rely on his own observation of what took place (or did not take place) in the courtroom, including the insignificance of any exchanges between the woman and Elomar's legal representatives.

His Honour's assessment of the responses of the jury and the impact of the event has not been shown in any way to have been flawed.

We reject these grounds of the appeals.

Virtually the whole of the evidence the subject of these grounds of appeal was given by the US National, Kwon. Kwon gave evidence on 13 and 14 January 2009. His evidence is set out above [68]-[73] and can therefore be briefly summarised.

The Crown alleged that, in September 2001, Moustafa Cheikho left Australia and travelled to Malaysia, filling in an outgoing passenger card declaring that he intended to spend the majority of his time outside Australia in Bangladesh. He in fact spent time in Pakistan, at the LeT camp. He returned to Australia in January 2002, declaring on his incoming passenger card that the country in which he had spent the majority of his time while away was Pakistan.

It was Kwon's evidence that he had met and associated with Moustafa Cheikho at the LeT camp, which was a military style training camp which had a clear Islamic focus. There were a number of mosques at the camp, and participants prayed five times daily. In the evenings they studied religious materials. The principal purpose of the camp was to train militant Islamists to fight in the conflict with India over Kashmir. They were given firearms training, and "commando training".

Subsequently, after his own arrest, Kwon gave assistance to the United States and Australian authorities. In an interview with Australian security personnel he identified Moustafa Cheikho, from a photograph, as a participant in the camp, whom he knew as "Abu Asad". He made that identification in the course of being shown a series of photographs, in respect of which he was asked to nominate any person whom he recognised.

Cross-examination of Kwon on behalf of Moustafa Cheikho was directed to showing either that he was mistaken in, or deliberately falsifying, his evidence that Moustafa Cheikho had been at the LeT camp. Kwon was questioned quite extensively about past dishonesty in a range of respects (even cheating while at university, giving false information to investigating authorities, and others). Ultimately, it was put to him that the man in the photograph he had picked out and identified as "Abu Asad" had not been at the camp in late 2001, and that "Abu Asad" did not exist. He said that was "not possible". He did agree that there was a possibility of "mistaken identity" but said that he was "pretty sure" that the man he had identified in the photograph (Moustafa Cheikho) was the man he had known as "Abu Asad".

Since Moustafa Cheikho did not give evidence in the trial, there was no evidence contradicting what Kwon had said.

The Crown sought to have the evidence admitted against all accused.

In seeking to have the evidence admitted against all accused, the Crown argued that it was relevant to establish "the nature and scope of the conspiracy" alleged. That, the Crown argued, was because Moustafa Cheikho, in possession of the knowledge and training he had acquired in the camp, ought to be seen as a "resource" available to the conspirators, and capable of being used in furtherance of the conspiracy.

Objection was taken to the admission of the evidence on behalf of all accused. The bases of the objection were (as noted by Whealy J: see Baladjam [No 7]):

Throughout the argument it was recognised that the most direct significance of the evidence was in relation to Moustafa Cheikho, and that different conclusions might be reached with respect to its probative value so far as he, on the one hand, was concerned, and so far as the other accused, on the other hand, were concerned. On 15 April 2008, Whealy J ruled that the evidence would be admitted only against Moustafa Cheikho: see Baladjam [No 7] at [102]. He rejected the proposition that Moustafa Cheikho (or his knowledge and training) constituted a "resource" available to the conspirators at [88]-[89].

The precise terms of the grounds concerning Moustafa Cheikho's attendance at the LeT camp in Pakistan are set out in full above at [155]. The issues they raise (in the order pleaded) may be summarised as follows: (i) whether evidence that Moustafa Cheikho had attended the camp was admissible; (ii) whether the identification evidence relied upon to prove Moustafa Cheikho's attendance at the camp was admissible; (iii) whether the evidence of Moustafa Cheikho's attendance at the camp is properly characterised as tendency evidence and therefore subject to the restrictions imposed by s 97 and s 101 of the Evidence Act; (iv) whether, if the evidence was otherwise admissible, its probative value was outweighed by the danger of unfair prejudice to Moustafa Cheikho (s 137 of the Evidence Act); (v) whether the directions to the jury in respect of the evidence were adequate; (vi) whether, the evidence having been admitted against Moustafa Cheikho, separate trials of the remaining accused ought to have been ordered.

In our opinion, there is little logic in this sequencing. Logically, the sequence in which the issues fall to be determined is as follows: (i) the admissibility (or otherwise) of the identification evidence [If the identification evidence was not admissible, then there was nothing to associate any of the appellants with the LeT camp and evidence concerning the camp could have no relevance in the trial.]; (ii) the true characterisation of the evidence of Moustafa Cheikho's attendance at the camp (that is, was it tendency evidence?) [On the approach taken by the appellants, if the evidence was tendency evidence, a miscarriage of justice is established because the appropriate tests concerning the admissibility of tendency evidence were not applied.]; (iii)(a) if the evidence was tendency evidence, was it admissible as such, having regard to the restrictions imposed by s 97 and s 101 of the Evidence Act? [This issue does not, strictly, arise on the approach taken by the parties. However, it is appropriate to consider it.] (iii)(b) if the evidence was not tendency evidence, its admissibility; (iv) if the evidence was otherwise admissible, was its probative value outweighed by the danger of unfair prejudice (s 137 of the Evidence Act); (v) the adequacy of the directions given; (vi) whether separate trials ought to have been ordered.

The identification evidence has been outlined above. The argument at trial concerning the admissibility or otherwise of the identification evidence was based on s 137 of the Evidence Act which dictates, in a criminal trial, the exclusion of evidence the probative value of which is outweighed by the danger of unfair prejudice to the defendant.

Two discrete propositions were put at trial: (i) that the credibility and/or reliability of Kwon was such that his evidence of identification should be rejected as of insufficient weight (and therefore lacking appropriate probative value); (ii) that the process of identification was flawed, such that the evidence ought to be rejected.

In the context of the first of these, reference was also made to the period of time between Kwon's participation in the camp and his identification of Moustafa Cheikho. That period was two years. This was put, among other things, as relevant to the reliability of the identification.

Whealy J quickly disposed of the first of the arguments, by referring to authority, binding on him, to the effect that the assessment of probative value for the purposes of s 137 of the Evidence Act does not permit judicial evaluation of the credibility or reliability of the witness through whom it is proposed that the evidence will be given: R v Cook [2004] NSWCCA 52, R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228, R v Mundine [2008] NSWCCA 55; 182 A Crim R 302 and Lodhi v The Queen [2007]. These authorities have since been affirmed (for NSW) by this Court, constituted by five judges, in R v XY [2013] NSWCCA 121; 84 NSWLR 363.

The criticism advanced at trial concerning the process by which Moustafa Cheikho was identified was described by Whealy J at [79] of Baladjam [No 7]. It was asserted that the "array" of photographs shown to Kwon (not as an array, but sequentially), from which he was invited to select any he recognised, was unfair in that some of the photographs were of individuals who did not conform to a general description previously given by Kwon of "Abu Asad" as "stocky". Others were photographed wearing glasses, although Kwon had never suggested that "Abu Asad" wore glasses.

Whealy J was referred to what was said to be a decision on comparable facts: R v Blick [2000] NSWCCA 61; 111 A Crim R 326. His Honour rejected the comparison, saying that Blick was "an extreme example" of an unfair array.

The first proposition advanced on appeal was that the line of authority commencing with Cook was wrongly decided. If credibility and/or reliability were taken into account in the assessment of the probative value of Kwon's evidence of identification, then its frailties would have been recognised, and the evidence excluded. That submission was made before this Court delivered judgment in XY. It cannot survive that decision. No separate submissions were directed to the asserted inadequacies in the identification process. The proposition that the identification evidence was wrongly admitted should be rejected.

The Dictionary to the Evidence Act defines "tendency evidence" (perhaps simplistically) as: "... evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection."

Section 97(1) of the Evidence Act relevantly provides: "97(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) ... (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." Evidence tendered as tendency evidence is therefore not admissible unless it is determined to have "significant probative value". In a criminal case, a further restriction is imposed by s 101(2), which provides: "101(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."

The Dictionary to the Evidence Act defines "probative value of evidence" as: "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

Both at trial and on appeal, the Crown disavowed reliance upon the evidence as tendency evidence. That, however, cannot conclude the issue. A court is not bound to accept a party's characerisation of the purpose for which the evidence is tendered. In appropriate cases, it must conduct its own examination of the evidence tendered in order to ascertain the true purpose of its tender: RWC v R [2010] NSWCCA 332 at [129]-[130] and RG v R [2010] NSWCCA 173 at [34].

In determining whether tendered evidence is properly to be regarded as tendency evidence, it is necessary to identify, with some precision, what the tendering party proposes to establish by the evidence.

Whealy J rejected the argument that the evidence was tendency evidence. He said: "53 ... even a preliminary reading of the general nature of the Crown's case would suggest that Moustafa Cheikho's training at the LeT camp is evidence that could rationally effect (sic) the assessment of the probability of both the existence of the physical and fault elements I have identified ... ... 57 The more cogent and persuasive part of the Crown's submission, in my view, is the argument that the general nature of the Pakistani training, as given in evidence by Mr Kwon, shows that it extended well beyond mere military training. It involved, I accept, a wider range of physical, mental and spiritual training for jihad in the broader sense. Once that be accepted, it is plain to see that the evidence of training in the LeT camp may be brought to bear on the assessment of the facts in issue in the present trial. ... 67 Against that background, it can be plainly seen that the evidence of the Pakistan training, if it be accepted for the moment that Moustafa Cheikho was the man Abu Asad, has the capacity to bear upon the assessment the jury will have to make, in the light of the Crown case and the defence position, on the fundamental issues in the trial. For that reason, the evidence will be neither evidence as to bad character, nor will it be tendency evidence. ... 69 It follows, in my view, that the evidence sought to be adduced has a reasonably high probative value. I do not accept that it is, as was argued, profoundly prejudicial or, for that matter, prejudicial unfairly, other than in the sense that, if accepted, it may be relevant to and support the Crown in its case and be destructive of the defence position. Whether it will be so will be a matter for the jury, properly instructed, to determine." (bold added)

To establish Moustafa Cheikho's guilt of the offence charged, it was necessary that the Crown prove:

Moustafa Cheikho's state of mind was directly relevant to the second and third of these. Evidence throwing light on his state of mind was therefore relevant and (unless otherwise excluded) admissible.

The agreement alleged constitutes the physical element necessary for criminal liability under the Code. Intention (to enter the agreement) constitutes the fault element. As is often the case where conspiracy is charged, the Crown sought to prove the agreement by inference. There was no direct evidence (such as an admission) available for that purpose.

On appeal, the parties maintained the positions they had taken at trial. On behalf of Moustafa Cheikho it was submitted that the evidence of LeT training had no rational or logical connection to the issues at trial unless it were relied upon to show tendency or bad character. The Crown argued that the evidence threw light upon "the nature and scope" of the conspiracy. It did not amplify how that was so.

On behalf of Moustafa Cheikho it was submitted: "94 The LeT evidence was unquestionably evidence of the character or conduct of the appellant on an earlier occasion, or evidence that he had a tendency to act in a particular way or have a particular state of mind. It was evidence that, if it were accepted, showed that on an earlier occasion the appellant had engaged in military training and ... 'a wider range of physical, mental and spiritual training for jihad in a broader sense'. It was capable of supporting an inference that the appellant had a tendency to be a jihadist or, perhaps more broadly, an extremist or terrorist. The only basis upon which it could rationally affect the assessment of the probability of the existence of a fact in issue in the trial was via such tendency reasoning: namely, that because on an earlier occasion (at the LeT camp) the appellant acted in a particular way (physical training for jihad) or had a particular state of mind (mental and spiritual training for jihad) he must have acted in the same way, or had the same state of mind, during the term of the alleged conspiracy. ... 99 The only way in which the identified evidence (possession of firearms and the toolbox, instructional material including a diagram of an electrical circuit involving a mobile telephone and explosive material etc), could be transformed in the minds of jurors, by reference to the LeT training evidence, from something entirely innocent to something more 'sinister' is through propensity or tendency reasoning. The transformation could only come about by a process of reasoning to the effect that the LeT training evidence led to the inference that the appellant had a tendency towards jihadist conduct or thinking and it could therefore be inferred that his purpose for possessing this material is likely to have been for jihadi or terrorism related purposes ..."

The Crown submissions on appeal were, relevantly, as follows: "515 The evidence was circumstantial evidence which, taken with the other evidence against this Applicant (sic), was relevant to proving a fact in issue; that this Applicant (sic) intentionally participated in the agreement alleged against him. 516 ... The evidence of training, if accepted, was relevant to the jury's consideration of the assertion that there was an innocent association/explanation in relation to the evidence. As his Honour stated, if accepted 'it may be relevant to and support the Crown case and be destructive of the defence case'. 517 That does not involve tendency or propensity reasoning. In the context of this case, and the nature of the anticipated defence, the use of the evidence did not involve reasoning that because a person has done a particular act in the past they will do it again, or because a particular person has had a particular state of mind in the past they will again. It does not rely on reasoning from a predisposition of the Applicant (sic) ..." (bold added; italics in original)

Notwithstanding the numerous occasions on which appellate courts have had to consider the admissibility of evidence tendered as tendency evidence, there has been relatively little analysis of what tendency evidence actually is. Tendency evidence is a species of circumstantial evidence.

It is necessary to look to the terms of the legislative provisions.

Stripped to its essentials for present purposes, what s 97 of the Evidence Act provides is: "Evidence of the character, reputation or conduct of a person ... is not admissible to prove that a person had a tendency ... to act in a particular way ... Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency ... to have a particular state of mind ..." (bold added) The prohibition is thus on evidence tendered to prove that a person has or had: (i) a tendency to act in a particular way; or (ii) a tendency to have a particular state of mind. Section 97(1) does not contain a prohibition on evidence tendered to prove that a person in fact acted in a particular way, nor on evidence tendered to prove that a person in fact had a particular state of mind.

As Simpson J has said on previous occasions (for example, Gardiner at [124]), proof that a person has or had a tendency (whether to act in a particular way, or to have a particular state of mind) of itself goes nowhere. Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning.

The process of reasoning is: Alternatively: Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion.

The evidence of Moustafa Cheikho's attendance at the LeT camp was not, in our opinion, evidence of conduct such that any conclusions or inferences could be drawn that he had a tendency to act in any identifiable (particular) way. It was, however, evidence that could provide the foundation for a conclusion or inference that, in 2001-2002, he in fact had a particular state of mind. That state of mind was support for violent Islamic Jihad. Looked at in that way, the evidence was capable of being seen as tendency evidence. It was evidence which could be seen as evidence that, because he had that state of mind in 2001-2002, he had a tendency to have that state of mind, and, commencing in 2004, he again had that state of mind.

That is one way of looking at the evidence. There is an alternative way of looking at it.

As mentioned above, s 97 of the Evidence Act restricts only the admissibility of evidence to prove that a person had a relevant tendency. It does not restrict evidence that proves that a person in fact acted in a particular way, or in fact had a particular state of mind, if evidence is available to prove that fact without recourse to the syllogistic process of tendency reasoning.

It is one thing to say that a series of acts of a person can establish a tendency to act in a particular way. That makes perfect sense. Common examples are to be found in cases of alleged sexual abuse of children. That an accused person is shown to have abused one child (or a number of children) may be held to establish a tendency to act in a particular way. (From that, it may then be inferred that, on an occasion relevant to the proceedings, that person acted in conformity with that tendency.)

It may also be said, in appropriate circumstances, that a series of incidents is capable of giving rise to an inference that a person had a tendency to have a particular state of mind. Common examples again are to be found in cases of alleged sexual abuse of children. It may readily be said that the accused person has a tendency to be attracted to children. (From that, it may then be inferred that, on an occasion in question in the proceedings that person acted in a way alleged, or did so with the relevant state of mind.)

A state of mind, unlike conduct, is not necessarily a series of intermittent events, feelings or ideas. Commonly, a state of mind is continuous. Belief in a deity, opposition to capital punishment, support for a political philosophy are all states of mind. It would not be in accord with ordinary human experience or language to describe a person who held such beliefs as having a "tendency" to have the relevant state of mind. Rather, the person is said to have that state of mind. Proof of a state of mind may be direct, not indirect. In appropriate circumstances, it does not depend upon tendency reasoning.

Evidence that a person has a particular state of mind is relevant to a vast number of criminal offences. Proof of the state of a person's mind is not tendency evidence. It is evidence of the fact of the state of mind of the person (even where, as is often the case, it is proved by inference). It is therefore necessary to ask whether the evidence of Moustafa Cheikho's attendance at the LeT camp was evidence of a tendency on his part to support violent Islamic Jihad, from which the Crown would seek to have drawn an inference either (i) that he entered into the agreement alleged intentionally; or (ii) that he intended that a terrorist act would be committed in Australia. If that were the basis on which the Crown tendered the evidence, it would come within s 97 of the Evidence Act and the tests imposed by s 97 and s 101 would have to be applied. Alternatively, did the Crown seek to prove that Moustafa Cheikho in fact supported violent Islamic Jihad, from which, similarly, the Crown would seek to have drawn an inference that he entered the agreement alleged intentionally, or intended that a terrorist act would be committed in Australia? The former involves tendency reasoning; the latter does not.

The most powerful argument in support of the former proposition is the gap in time between Moustafa Cheikho's attendance at the camp, and the commencement of the alleged conspiracy. But that does not conclude the issue. Proof that a person held a particular belief on one occasion does not prove that he had a tendency to have that belief. It proves that, on that occasion, he did have that belief. There is no reason to think that, if Moustafa Cheikho had a state of mind that supported violent Islamic Jihad in 2001-2002, he did not continue to have that state of mind up to and including the time of the alleged conspiracy.

If it could reasonably be inferred from the evidence of his attendance at the camp, and the nature of the camp, that he had a state of mind that favoured militant Islamic Jihad, it may equally be reasonably inferred that he continued to have that state of mind up to and beyond 2004. That is not tendency evidence and does not give rise to tendency reasoning.

The Court of Appeal of Victoria has held that evidence of a state of mind is not admissible as tendency evidence: Velkoski v The Queen [2014] VSCA 121. At [173] the Court distilled a number of principles from the relevant authorities. It stated principle (f) in the following way: "(f) The offender's state of mind is frequently relied upon in the Crown's notice of tendency evidence to cover the offender's interest in particular victims and his willingness to act upon that interest. That the offender has such a state of mind discloses only rank propensity which is not admissible as tendency evidence. It shows only that he is the kind of person who is disposed to and commits crimes of the type charged. Resort to that particular state of mind to support tendency reasoning is impermissible, highly prejudicial and unnecessary. Once the jury is satisfied that the acts relied upon as tendency have been committed, the offender's state of mind adds nothing. Reference to it is calculated to divert the jury from focussing upon the extent to which the similar features of the previous acts render the occurrence of the offence charged more likely ..." (italics added)

If, by this paragraph, the Victorian Court of Appeal is asserting that s 97 of the Evidence Act does not permit evidence of the offender's state of mind to be used as or establishing a particular tendency then, with respect, we consider it to be incorrect, and should not be followed in this State. There is no such limitation in the statute, the limitations on tendency evidence being those contained in s 97 itself and s 101. Further, at the point when admissibility of evidence is under consideration, it cannot be known whether "the jury is satisfied that the acts relied upon as tendency have been committed". Indeed, at that time, a jury may not have been empanelled, and, even if it has, will not have reached any conclusions about the commission of the tendency evidence acts. Evidence of the state of mind of the accused may be very relevant to their reaching that satisfaction. In the second place, the very point of s 97 is that evidence of a state of mind is, once the pre-conditions have been met, permissible to provide the foundation for, or part of the reasoning process towards, an inference that the person committed the offence charged. Paragraph [173](f) of Velkoski does not state the law as it is understood in NSW.

On the above analysis, in our opinion Whealy J was correct to hold that the evidence was not tendency evidence.

Notwithstanding the above conclusion, it is appropriate to consider the question of whether, if the evidence was properly characterised as tendency evidence, it ought not to have been admitted. This was not an issue to which argument was directed.

We have set out above the relevant restriction on the admission of tendency evidence imposed by s 97(1) of the Evidence Act: to be admissible, the evidence must have significant probative value. Moreover, by s 101, it could not be used against Moustafa Cheikho unless its probative value substantially outweighed any prejudicial effect it may have had upon him.

Given the view to which he came, Whealy J did not turn his mind to the issues so raised. However, there are findings in the judgment which throw light upon the relevant questions. In Baladjam [No 7] at [57], Whealy J accepted that the evidence showed that the LeT training went well beyond mere military training, and involved a wider range of physical, mental and spiritual training for Jihad "in the broader sense". On that basis he comfortably accepted that the evidence "may be brought to bear on the assessment of the facts in issue" in the trial. This is a clear finding that the evidence had significant probative value, a finding that can be applied for the purposes of s 97(1) of the Evidence Act. He made similar observations at [67] of Baladjam [No 7].

In Baladjam [No 7] at [69], he held that the evidence was of "reasonably high probative value". He went on to find that it was not unfairly prejudicial (other than in the sense that all Crown evidence is intended to be prejudicial). In other words, it was prejudicial, but not unfairly so.

The only question to which Whealy J did not expressly allude was whether, for the purposes of s 101 of the Evidence Act, the probative value of the evidence substantially outweighed any prejudicial effect it may have had upon Moustafa Cheikho. However, that can readily be inferred from the passage at [69] of Baladjam [No 7] where he rejected the proposition that the evidence was unfairly prejudicial. These are findings that implicitly, but sufficiently, establish that, even if the tendency evidence questions had been addressed, the evidence would have been admitted, and properly so.

Having considered the evidence, and reviewed the findings of Whealy J, we are satisfied that no injustice was done by the admission of this evidence against Moustafa Cheikho.

Section 137 of the Evidence Act provides: "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

The questions posed are essentially the same as, (although less than) those posed by s 97(1) and s 101 of the Evidence Act. The conclusion in relation to those provisions dictates the further conclusion that his Honour was correct not to reject the evidence under s 137.

The directions to the jury concerning Kwon's evidence were relatively brief. Senior counsel who appeared for Moustafa Cheikho at trial expressly sought a direction in the following terms: "I direct you that the fact that the accused is alleged to have been at a training camp is not to be used as proof of any tendency on his part to commit the crime of conspiracy alleged in the indictment." He said that the reason he sought that direction was the earlier ruling that the evidence was not admitted as tendency evidence.

The directions given incorporated that, in the precise terms sought. The direction with respect to the LeT training camp included the following: "The first principal allegation is that Moustafa Cheikho attended a training camp in Pakistan in the latter part of it 2001 [sic]. The Crown demonstrated, and it is not an issue, that Moustafa Cheikho left Australia on 27 September 2001 and did not return until 22 February 2002. There is, as I say, no dispute [on] those matters. What is in dispute is whether he was in attendance at the training camp in Pakistan. The Crown case relies essentially upon the evidence of Yong Ki Kwon and to a limited degree the evidence of Special Agent Ammerman and an intelligence officer known as Michael Springer. When I say the Crown case relies essentially upon that evidence, I mean essentially for the point of obtaining direct identification. Circumstantial evidence against Moustafa Cheikho includes of course the matters that I have earlier mentioned such as his departure from Australia, his absence during a particular period of time and his return in February 2002 ... [Whealy J then outlined, quite briefly, Kwon's description of the camp and its routine.] Kwon said it was three to five days during the second phase of training that he met a man that he came to know as Abu Asad. It's the Crown case that Abu Asad is Moustafa Cheikho ... [Whealy J then referred to the evidence of the identification of Moustafa Cheikho by Kwon, and went on]: Members of the jury, Moustafa Cheikho disputes that he was the person Abu Asad and disputes that he was in attendance at a training camp in Pakistan in 2001. I have given you directions during the trial and during this summing-up already, which focus upon the need to take a good deal of care and caution when assessing the reliabilities of identification evidence ... For the moment, however, I want to stress that the fact of Moustafa Cheikho's training at a training camp in Pakistan, even if you accept that it was he at the camp, is not evidence that proves he is guilty of the crime charged. It is no more than a circumstantial fact to be weighed up by you with all the other circumstantial facts that are relevant in the case against Moustafa Cheikho. Specifically, I direct you that the fact that the accused Moustafa Cheikho is alleged to have been at a training camp, if you find that it was he, is not to be used as proof of any tendency on his part to commit the crime that is alleged in the indictment and charged against him in this trial ..." No objection was made on behalf of Moustafa Cheikho to any of this direction, and no additional direction was sought.

The complaint that is now made is that these directions were inadequate. In particular, complaint was made that the directions do not comply with the requirement stated in Roach v The Queen [2011] HCA 12; 242 CLR 610. At [47] the majority (French CJ, Hayne, Crennan and Kiefel JJ) said: "The importance of directions in cases where evidence may show propensity should not be underestimated. It is necessary in such a case that a trial judge give a clear and comprehensible warning about the misuse of the evidence for that purpose and explain the purpose for which it is tendered. A trial judge should identify the inferences which may be open from it or the questions which may have occurred to the jury without the evidence. Those inferences and those questions should be identified by the prosecution at an early point in the trial. And it should be explained to the jury that the evidence is to allow the complainant to tell her, or his, story but that they will need to consider whether it is true."

Roach involved an appeal from a Court of Appeal of Queensland. It concerned s 132B of the Evidence Act 1977 (Qld) which rendered admissible relevant evidence "of the history of the domestic relationship between the defendant and the person against whom the offence was committed" in certain nominated offences. In that sense, it has little bearing upon the circumstances of the present case. Even if Roach is to be given a broader application, it is still directed to "propensity" evidence. Given the view to which we have come, set out above, that the evidence is not tendency evidence, it is difficult to see how the passage can be brought to bear in the present case.

In the written submissions filed on behalf of Moustafa Cheikho it was complained that that part of the direction in which the jury was told that they could not use the evidence of Kwon as proof of any tendency on Moustafa Cheikho's part to commit the crime that is alleged in the indictment was also "somewhat obscure and overly narrow". It was submitted that: "128 ... The jury should have been directed that they could not use the evidence as evidence that the accused had a tendency to act or think in a particular way (ie a tendency towards jihadist thoughts or actions) and to reason from this that he was more likely to have participated in the alleged conspiracy."

Specifically, it was submitted that the directions were inadequate because: "130 ... i. they did not explain the purpose for which the evidence had been tendered; ii. there was no identification of the inferences which may be open from the evidence; iii. there was no identification of the questions which may have occurred to the jury without the evidence."

The submission that the jury should have been directed that they could not use the evidence as evidence that Moustafa Cheikho had a tendency to think in a particular way (for example, that he supported "jihadist thoughts or actions") is difficult to understand. If, contrary to the view we have reached, the evidence was tendency evidence, then the jury would have been fully entitled to use the evidence as the basis for a conclusion that Moustafa Cheikho had a tendency to think in that particular way. The evidence of his participation, even two years earlier, in a militant Islamic military training camp was ample evidence on which to reach a conclusion that he had that state of mind. Of course, the lapse of time between his participation in the training camp and his alleged participation in the conspiracy was a relevant factor as to whether that conclusion should be drawn.

Moreover, it is difficult to see that an explanation of the purpose for which the evidence was tendered, or the inferences that might have been available from the evidence, could have assisted Moustafa Cheikho. Leaving aside the question of tendency, the evidence was available to show that he had a state of mind that supported militant Islamic action. Any more detailed direction could only have been harmful to him. To the extent (if any) that the directions were inadequate, they were inadequate in failing to identify the manner in which they assisted the Crown case.

In our opinion, there is no substance in the complaint concerning the directions.

In September 2008 (before the jury was empanelled), on behalf of Elomar and Hasan, applications were made for separate trials of all accused other than Moustafa Cheikho. The sole basis for the applications was what was said to be the (anticipated) prejudicial effect of the admission of the evidence of Moustafa Cheikho's participation in the LeT camp.

On 30 September 2008 Whealy J rejected the applications: Baladjam [No 49]. In a manner that has not attracted criticism, Whealy J set out the principles applicable to applications for separate trials of alleged joint offenders: Webb, R v Bikic [2000] NSWCCA 106; 112 A Crim R 300, Regina v CE [2005] NSWCCA 326 and R v Middis (NSWSC, 27 March 1991, per Hunt J (as he then was), unreported).

Drawing on Regina v CE, and other cases, Whealy J observed that, in the ordinary case, offenders alleged to have offended jointly ought to be tried together, unless it can be shown that "positive injustice" would be caused by a joint trial.

The principles stated by Hunt J in Middis have been the subject of some further discussion: Regina v Pham [2004] NSWCCA 190, per Adams J. That discussion is directed to a proposition by Hunt J that a separate trial will be ordered where an applicant is able to demonstrate that: "... there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material." (italics added)

Whealy J recorded the substance of the submissions advanced on behalf of Elomar and Hasan as being: "25 ... that their case will be substantially prejudiced by the evidence relating to Moustafa Cheikho's training in Pakistan." His Honour went on to make the following findings: "32 I must state at the outset that, despite the forceful arguments of counsel, I do not agree that the matters relied upon are persuasive of a finding that there should be a separate trial. First, I do not think the evidence concerning Moustafa Cheikho's alleged training at a Pakistani LeT camp is as highly prejudicial as has been claimed. It is certainly prejudicial, in a general sense, in the case against Moustafa Cheikho. But, even in the case against him, its value may be curtailed somewhat by a number of matters that are likely to be raised by [senior counsel] on his behalf. For example, there is a real issue as to whether it was he at the camp ... [Senior counsel] will argue strongly that the identification itself, and indeed the process, were seriously flawed. In addition, there will be a real issue over the reliability and credibility of the witness Kwon. This man will be painted as something of a 'stooge' for the FBI, a person who was acting as a professional witness to secure his own release from custody for serious terrorist offences. ... 34 The second reason for my rejecting the submissions made on behalf of Elomar and Hasan is the firm belief I hold that the giving of appropriate directions will be sufficient in the circumstances of this matter to prevent the unwarranted speculation and conjecture painted so colourfully by the submissions of counsel. 35 The fact of Moustafa Cheikho's training in Pakistan, if it were he, is a single isolated piece of evidence. It is isolated both temporally and geographically. It predated the alleged conspiracy by about two and a half years. There will be, as I understand it, no evidence of any adverse behaviour by Moustafa Cheikho after he returned to Australia from overseas up until the commencement of the conspiracy. ... 52 ... [Senior counsel] has argued that 'guilt by association' is likely to arise. But I am not satisfied that this is so. In my opinion, the cases against Elomar, Hasan and Moustafa Cheikho are very much the same and have much in common. There is an individual piece of evidence against Moustafa Cheikho which is not admissible against the others. It is an isolated piece of evidence and can easily be the subject of a satisfactory and effective direction. In those circumstances, I am not satisfied that there is any real risk of positive injustice."

With respect to par [34] cited above, part of the directions given by his Honour was set out in the written submissions before this Court. No complaint is made about those directions.

The submission that was made on appeal is somewhat curious. It was: "203. It is submitted that his Honour underestimated the prejudicial affect (sic) of the evidence concerning Moustafa Cheikho training at the LeT camp against Hasan and Elomar, particularly in the light of the publicity given to the terrorist attacks in Mumbai in late 2009 (sic - 2008) linking LeT and terrorism, only weeks before Kwon was called to give evidence."

The reference to "publicity given to the terrorist attacks in Mumbai" was a reference to evidence (in the appeal) that, in November 2008, the media reported a terrorist bombing in Mumbai, India. This post-dated the decision by Whealy J to admit the evidence.

We interpolate that it can hardly be (fairly) put that Whealy J erred in his assessment of any prejudicial effect of the evidence "in the light of publicity given to" an event that had not happened at the time of his assessment. The true basis for the present ground is that, by reason of events that occurred after the decision to admit the evidence was made, a miscarriage of justice can be shown.

On 11 September 2009 applications were made on behalf of Moustafa Cheikho, Khaled Cheikho, Hasan and Jamal for discharge of the jury. (This was at a point at which the evidence was concluded, and the summing up had commenced.) The basis for the applications was, in part, the events in Mumbai; there had also been reports of terrorist activity in Britain. Whealy J declined to discharge the jury. He gave reasons on 21 September 2009: Elomar [No 27]. There is no ground of appeal that challenges that decision.

In our opinion there is no foundation for any assertion, either:

Indeed, leaving aside the effect of the Mumbai events, no submissions were directed to the former proposition. The submissions directed to the latter proposition cannot withstand scrutiny. It is a tragic fact of modern life that terrorist activity, from time to time, takes place in various parts of the world. The fact that a crime, of the kind related to the subject of a current trial, takes place and is reported, cannot impede the processes of the law.

In the absence of any complaint about the content of the directions, it must be taken that those directions were adequate to inform the jury of what their task was.

In our opinion, the claim that Whealy J was in error in declining to order a separate trial of the allegations against Elomar, Hasan, Khaled Cheikho and Jamal (that is, a separate trial of Moustafa Cheikho) fails. It follows that these grounds of appeal concerning the evidence of Moustafa Cheikho's attendance at the LeT camp must be rejected.

We have referred earlier to the vast quantities of computer material, DVDs and CDs found to be in the possession of several of the appellants on the execution of search warrants. Those the subject of this ground of appeal included images that depicted body parts and organs; injured children and adults; dead children and adults and video footage of beheadings of prisoners and hostages by the use of knives and swords. There is no doubt that some, at least, of these were graphic and confronting.

The images were incorporated into two DVDs, one containing 139 image files, the other containing 313 image files and 216 document files. One segment of the former contained edited footage of six executions, principally by beheading (the footage having been edited to delete the actual beheading). The images were accompanied by a sound recording, although the Crown stopped short of tendering the audio component, which it acknowledged was distressing.

Other files on the DVDs were not categorised as "gruesome"; they included footage of the attacks in the USA on the Twin Towers on 11 September 2001, and Osama bin Laden and other Muslim jihadists.

In October 2008 (that is, shortly before the jury was empanelled) objection was taken on behalf of all accused to the admission of this material. As recorded by Whealy J, the objections fell into three categories: (i) of the material, 33 specific images described as "gruesome" should be excluded; (ii) the images of the six executions (even as edited) should be excluded; (iii) the images of Osama bin Laden and other jihadists should be significantly reduced in volume.

In each case, the objection was based on s 137 of the Evidence Act - again, that the danger of unfair prejudice resulting from the admission of the evidence would not be substantially outweighed by its probative value. In the case of categories (i) and (ii), this was because of the confronting nature of the imagery and the potential effect on members of the jury. In the case of category (iii) it was the volume of the evidence that was said to create the danger of unfair prejudice.

Whealy J ruled on the issue in Baladjam [No 50]. He restricted the quantity of material the Crown wished to have admitted. He allowed footage of only one of the six executions the subject of the tender, without the actual beheading, and without the audio track. He allowed one still image relating to each other execution, accompanied by appropriate descriptions and/or text.

In support of their objections, the appellants relied upon two items of evidence. One was a report of a psychologist, Associate Professor Jane Goodman-Dellahunty. Associate Professor Goodman-Dellahunty was asked to report by responding to six specific questions. The questions concerned: 1 the likely impact on jurors of graphic images of injured civilians, deceased persons, distressing images and beheadings; 2 the likely impact on jurors of images of September 11, 2001 attacks; 3 the likelihood of emotional versus rational responses to the graphic materials; 4 the collective impact of the number of images and their influence on propensity to convict, as opposed to presentation of one or two images in a category; 5 the impact of the form of presentation (that is, edited DVD with captions and commentary); 6 the influence of judicial directions on use of evidence and emotions.

Associate Professor Goodman-Dellahunty answered questions 1 and 3 in a way that might be summarised as follows: "(a) Graphic images will exacerbate juror stress; (b) The graphic images will arouse negative emotions in jurors; (c) Jurors' capacity to concentrate on other evidence will be impaired; (d) Increased proclivity to convict; (e) Gruesome images trigger biasing mortality salience defences; (f) The influence of extrinsic or unrelated gruesome images."

Whealy J found the report generally unhelpful and gave it little, if any, weight. He concluded that the objection could and should be determined in accordance with the traditional approach taken by courts in assessing the probative value of evidence against the danger of unfair prejudice, recognising the significant weight courts attribute to the capacity of juries to perform the task assigned to them in accordance with directions they are given: see, for example, R v Marsland (NSWCCA, 17 July 1991, unreported), R v Lansdell (NSWCCA, 22 May 1995, unreported) and Gilbert v The Queen [2000] HCA 15; 201 CLR 414, per McHugh J at [32]. On appeal, it was argued that this was an insufficient basis for rejection of the content of the report.

The other item of evidence put before Whealy J was a statement by a member of the Australian Federal Police ("AFP"), Federal Agent ("FA") Povolny. FA Povolny was a team leader of a Property Review Team ("PRT") which comprised officers of the AFP and NSW police. The task of the PRT was to conduct a review of all media material seized during the execution of the search warrants. This included the material the subject of these grounds of appeal. PRT members were required to examine the seized material, and record their analyses, item by item. Because of the nature of the material, and what FA Povolny said was "the detrimental impact" it was having on PRT members, the advice of Psychological Services of the AFP and NSW police was sought. As a result of those Services' review of the material, it was determined that the workplace (of the PRT) was "psychologically hazardous". (In other words, viewing and analysing the material constituted a workplace hazard to the PRT members.) As a result, in order to reduce the impact, a Psychological Strategy with modified work practices was implemented. Exposure of individual PRT members was limited to four hours per day. PRT members were monitored by their respective Psychological Services and given regular formal and informal debriefings and counselling; and they were given regular breaks during the review process.

FA Povolny said that, while these measures were found to be effective, the viewing of the material continued to have a detrimental effect on some PRT members. Some were reallocated to other duties. Eventually, at a time when the review process was something more than half completed, due to occupational health and safety concerns the review was terminated.

Counsel for the appellants relied on FA Povolny's evidence to support a claim that, if the material was so graphic and so confronting that it affected seasoned police officers, then it must be inferred that it would have at least a similar effect on jury members. Of course, we interpolate, damaging though that effect may be, it does not determine admissibility. The argument continued, however, that the consequence would be likely to be arousal of prejudice in the minds of the jury against the accused.

Whealy J rejected this proposition, on the basis that there was no valid comparison between what the PRT members had seen and what the Crown sought to put before the jury. Essentially, that was because the quantity of material viewed by PRT members was vastly greater than that proposed to be shown to the jury; it was examined continuously over lengthy periods; and because the PRT members were unprepared, not knowing what to expect. The jury would, by contrast, be forewarned and forearmed.

Whealy J drew support from a decision of the trial judge in the Melbourne proceedings in which a similar issue had arisen: R v Benbrika (Ruling No 15) [2007] VSC 545. That decision has since been upheld by the Victorian Court of Appeal: Benbrika v R; Joud v R; Sayadi v R; Merhi v R; Ahmet Raad v R; Ezzit Raad v R; Haddara v R [2010] VSCA 281; 29 VR 593 at [268]-[286].

Ultimately, Whealy J held that the Crown was entitled to show the images to the jury. He said: "95 ... in the context of the whole Crown case, the likely length of the trial, and the abundance of extremist material seized from all the accused, the showing of the suggested number of images is, in my view, neither excessive nor lacking in proportion. The jury is entitled to see a selected number of these images to appreciate the full flavour of the way in which they would have been viewed by the accused. A written or verbal description of the images and their content would not convey effectively the exaltation displayed, and intended to be displayed, by the images themselves. The Crown case is that the accused who viewed these images would have done so in an atmosphere of enjoyment, self congratulation and unfeigned pleasure at the defeat of a viscous and common enemy. It is necessary to see the images as they would have been seen by the accused. 96 In my view, the display of these images, provided it is done proportionately, will not raise the spectre of unfair prejudice. There should, of course, be directions fashioned to meet the needs of the situation, but it also needs to be stressed that these particular images, in my opinion, are not distressing or gruesome. It is true that, particularly the images of the September 11 attack, are likely to evoke an emotional response. But the jury can plainly be directed to view the material dispassionately, without emotion and without bias. Importantly, it can be told why it is relevant in the case against the accused and, as before, reminded that it should not reason that because the accused may have approved the September 11 destruction, that they are, for that reason, guilty of the offence charged. The jury can be reminded that this too is evidence of a circumstantial kind that must be assessed as to its weight, and in the context of the whole of the evidence, before determining whether the Crown has proved its case beyond reasonable doubt. Finally, the jury may be reminded that, if there is a reasonable explanation inconsistent with guilt, the Crown will not have proved its case beyond reasonable doubt."

It is apparent, from the second sentence of par [96] cited above that his Honour was not, in that paragraph, referring to the images of beheadings. He considered that a little later, saying: "101 ... It will enable the jury to see, according to the Crown case, that the state of mind of the accused, both individually and as a group, has gone well beyond mere anger and outrage, beyond jubilation at the success of the 2001 destruction, to a point where it exults in the cruel humiliation and gross murder of innocent persons on an individual basis, whether they be hostages or captured combatants. If ever a terrorist intention could be said to be manifested, the Crown will argue, it must be apparent from the pleasure likely to have been taken from watching this dreadful humiliation and murder of an innocent fellow human being."

His Honour went on to limit the admission of the material in the manner set out above. At the time he made the ruling, the video proposed to be shown to the jury ran for 24 minutes and 33 seconds. Each image appeared on the screen for two to three seconds.

It can be seen, from various passages in these paragraphs, that Whealy J believed or assumed that the appellants had actually viewed all or some of the material. Whether that was based on evidence then anticipated is not clear.

During the course of the trial, and before the video material was shown to the jury, the Crown reformatted the video. Instead of showing individual images for two to three seconds, it proposed to show them for eight to nine seconds. The total viewing time was extended to 33 minutes. The stated reason for this was to allow the jury sufficient time to read the text that accompanied 40 of the images.

This prompted a further objection, in March 2009, on behalf of all accused, based on asserted compounded prejudice by reason of the extension of the time during which the jury would be exposed to both the individual images and the total video. On 20 March 2009 Whealy J overruled the objection and maintained the ruling he had previously made: Regina (C'Wealth) v Elomar & Ors [No 13] (NSWSC, Whealy J, 20 March 2009, unreported).

Evidence of the images commenced on 30 March 2009. Prior to its commencement, Whealy J gave the jury a lengthy and detailed direction. He told them that evidence was about to be given by a member of the AFP, FA Steven Barrett. He said that some of the material they would be shown contained a number of photographic images and video footage that depicted scenes of violence and the results of violence. He went on to say: "I recognise that explicit material of that kind may be disturbing, offensive and confronting to some people. Some of the images, for example, show significant injuries to human beings. You must avoid reacting to this evidence in an emotional or irrational manner and you must guard against a natural human tendency to do so. It is of vital importance that as judges of the facts you maintain a dispassionate and detached view towards the whole of the evidence."

He told them that the evidence was tendered as:

He went on to tell them that they should not use the evidence "in any impermissible way", and that it would be "completely wrong" that merely because the material was located at the premises of any accused that any of them was guilty of the charge or had a tendency or propensity to commit an act or acts in preparation for a terrorist act.

There was more in the same vein.

FA Barrett was then sworn and commenced his evidence. The transcript shows that some video footage was shown, over a period starting at 10.20am. As the court was about to take the lunch adjournment, senior counsel for Hasan sought to "place two observations on record". She said: "Your Honour, just before the morning tea adjournment when we were viewing some of the videos, one of the female jurors in the front row, younger female, was not looking at the screen. After morning tea, there was a change of position between two of the female jurors in the front row, the younger female and the female sitting beside her, the younger female positioning herself in a position where a screen was not directly in front of her. The female to one side of her was holding her notepad so as to obscure the screen. It appeared the other juror to the other side of the young woman, who was the older male gentleman, had a folder up against the screen to obscure it. That was my observation and the observation of [junior counsel]."

On resumption after the lunch adjournment, Whealy J asked counsel if he should enquire of the jury if they were "up to watching" the remainder of the video. When the jury returned Whealy J asked them if they preferred to postpone until the following day the viewing of the next segment. He warned that the next segment contained some graphic images, about 139 in number, and would occupy about three-quarters of an hour. He also referred to a note that indicated that one of the jurors was not feeling well and would prefer to postpone the further viewing. That is what happened. The court adjourned for the remainder of the day.

The following day, 31 March 2009, senior counsel who appeared for Moustafa Cheikho sought reconsideration of the two judgments with respect to the admission of the evidence. That application was based upon the jury communications of the previous day. Whealy J gave a short oral judgment, declining to "review" his earlier decisions. However, he again invited the jury to make the decision as to the manner and the timing in which the evidence was to be given. He said: "I am concerned about the situation to the extent that I wanted to say this to you: the view taken by the court is that the Crown is entitled to place those images before you, but the court is, nevertheless, concerned that you should not be overly discomfited by graphic images. So, I want to put the decision back to you. I want to say to you that I would like you, having heard what I have to say, to just adjourn for a few moments and discuss it among yourselves; then come back and let me know what you would like to do. If the situation were that you took the view, individually and collectively, that it would be preferable not to burden the juror who was discomfited yesterday with looking at these images, you can tell me that. Then it will be necessary for the Crown to prepare a description of what is on the images. They would not be seen by you. If, on the other hand, you feel that you would not be overly discomfited by looking at the remaining images that are to be shown, then you could let me know whether you would prefer it to be done that way. In other words, I really want to put it back to you and put it in your hands to determine. Only you know how you feel about seeing images of this kind. I would like you, of course, to just discuss it among you as a group. I am sure, in so doing, you will keep in mind the fact that one of you was discomfited yesterday and you will have some concern for her wellbeing in coming to a decision, but it is ultimately, I think, a group decision that you should make. The court will abide by your decision." The foreperson then asked Whealy J to "clarify the level of censorship that we had yesterday".

Whealy J replied that there were no executions to be shown in the images, and that they would be on the screen for a relatively restricted period of time, 8 or 9 seconds, and would be captioned to explain any that had writing on them and indicating in whose homes they were found. The Crown prosecutor added that some of the pictures were of dead bodies, some of them mutilated, and that they could reasonably be described as "gruesome images" with a degree of "unpleasantness".

The jury retired and sent a note which read: "The jury has discussed the proposal related to viewing 139 images containing graphic content. The jury agrees to view the images in the proposed format with no further censorship required."

The playing of the videos resumed, with FA Barrett operating the video player, and giving some oral evidence from time to time. The oral evidence explained some technical aspects of the database on which the videos were recorded, and also summaries of some DVDs which do not appear to have been played.

It is sufficient to extract the description of one of the videos. FA Barrett described imagery of a man seated on the ground, cross-legged or on a low stool, speaking in a foreign language. A second man appears, seated in the same position (wearing different clothes). He also talks in a foreign language. The description goes on: "It appears that the second man is lying face down on the ground and has been blindfolded and his hands bound behind his back. His shirt has been removed. A man is standing behind him and is holding the victim's head with his left hand and is holding a cutting instrument with his right hand and cutting into the victim's throat. The victim is heard to gurgle through his throat as massive amounts of blood spurts from the open throat wound. Blood flows all over the ground and after a few seconds the head is completely severed ... The executioner then finishes severing the head from the body and places the deceased man's head on the back of the dead body. A few seconds later the head is turned towards the camera. It is no longer blindfolded and it appears to be the head of the second man ... The frame then changes and it appears that the first man is now lying on the ground with his hands bound behind his back ... A man is standing over him and cutting through this man's throat with a knife. An assistant is holding a torchlight on the victim's head area. Large amounts of blood flow onto the ground from the open throat. The victim is heard breathing through the throat ... the executioner severs the head and places the head on the body so it faces the camera. It appears to be the head of the first man ..."

There was evidence in the appeal, in the form of an affidavit affirmed by the solicitor representing Hasan that, at this point FA Barrett "appeared to become upset". As a result, senior counsel appearing for Elomar said that he did not object to the written description of the material being tendered. All defence counsel agreed.

However, the Crown prosecutor preferred to have the descriptions read but took on that task himself. The transcript shows that counsel for the Crown read a number of descriptions of videos to the jury.

As the trial progressed, it became apparent that the Crown was not in a position to adduce evidence to prove that the bulk of the video material had in fact been accessed by any accused. In his evidence in chief, Hasan said that it was common for Islamic material in leaflets or CDs, to be handed out at prayer halls after Friday prayers. He said that he gave it to his wife to put into the computer. He said that he had watched "a couple of the DVDs". He said that the audio component of the DVDs was in Arabic, a language he did not understand.

In cross-examination, Hasan confirmed that he had watched "execution videos" but did not like them. He said that he saw one video of a beheading and: "I got almost sick of it because it is not normal, you know, to watch something getting slaughtered, so I didn't like it. I turned it off, you know, that's it."

The submissions advanced on appeal challenged both Whealy J's assessment of the probative value of the evidence, and his assessment of its danger of unfair prejudice, the key elements of a determination under s 137 of the Evidence Act.

The challenge to the assessment of probative value was based on the assumption, made by Whealy J, that the appellants had in fact viewed the video material. In this respect, it was submitted that Whealy J was in error in relying on the decision in R v Benbrika (Ruling No 15); that was because there was, in Benbrika (Ruling No 15), evidence of actual viewing of, and access to, the material in question.

However, the submission went further. It was said: "251 It is clear that in his Honour's reasoning in the pre-trial application that his Honour was under the impression that evidence would be adduced as to some level of access to the images and footage ..."

This somewhat elevates the assumption made by Whealy J, which was of access, not of explicit evidence of access. It is, in our opinion, not an unreasonable assumption that, when large quantities of video material of a particular kind are found in the possession of a person, that that person has viewed at least some of it, or intends to do so. It is a fair assumption that it is in possession for a purpose, and that purpose includes viewing or passing the material on to some other person. Further, the possession of large quantities of material of a particular kind is indicative of an interest in material of that kind, whether or not it has actually been viewed. It therefore was relevant to the state of mind of each of the accused, all of whom were shown to have been in possession of material of this kind. Moreover, the evidence that material of this kind was in the possession of all of the appellants is indicative (again, whether or not the evidence is sufficient to establish actual access) of a common interest in the subject matter of the material, and therefore relevant to the existence, the nature and scope of the conspiracy alleged - that is, that the appellants were acting in concert. These were the bases on which the Crown sought, and Whealy J permitted, the admission of the material. The fact that the evidence could not establish, in the case of any individual item, that it had been viewed did not eliminate its probative value.

The challenge to Whealy J's assessment of the danger of unfair prejudice was based on experience in the trial - the apparent effect of the evidence on one member of the jury, and on FA Barrett. This is not a proper basis for attacking the admission of the evidence. Whether there is an error of law in a decision to admit evidence is not to be determined by reference to its later impact. As is pointed out above at [167], that raises a ground of miscarriage of justice.

The argument is flawed. It is not sufficient for the appellants to show that the evidence triggered emotional responses in police, or in members of the jury. For the evidence to create a danger of unfair prejudice, it must be shown that it is likely that it will, in some way, be misused: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297.

Whealy J was careful to bring to the jury's attention the potential emotional impact of the evidence, and to caution them to maintain objectivity. There is no reason to believe that a temporary discomfiture on the part of one (or even more) of the jury translated into a misuse of the evidence. It is apparent that the jury proceeded with their task for many months after, with no suggestion of any incapacity of the jury to pay proper attention to the remaining evidence.

Senior counsel went so far as to call in aid an incident that occurred on the third day of the summing up. At a point where Whealy J was giving directions with respect to the videos, the foreperson of the jury asked for a short break. In the written submissions on appeal, it was suggested that the timing of this request indicated that it was prompted by distress or revulsion at even the thought of the videos. There is no reason to think that this is so. Indeed, Whealy J's immediate response was to say that he assumed that the request was for "a comfort break". No counsel suggested that he or she had observed any sign of distress or discomfort in the jury, or that the request was for anything other than "a comfort break".

In our opinion, Whealy J made a correct assessment of the probative value of the evidence, and of its potentially unfairly prejudicial effect. Although he did not say so expressly, in our opinion he regarded the probative value of the evidence as substantial. There is nothing unfair about the admission of evidence that shows that an accused person is in possession of material apparently supportive of terrorist activity. Unless it could reasonably be shown that the impact of the evidence was likely to be that the jury would fail to comply with their duty as explained to them by Whealy J, the only reasonable conclusion was that the probative value of the evidence substantially outweighed any (remote) danger of unfair prejudice.

In our opinion the evidence was rightly admitted.

We reject Ground 5 of Hasan's appeal and the corresponding grounds of the other appeals.

We have already extracted some of the preliminary directions given to the jury, at the time the evidence was about to be given. Apart from alerting the jury to the confronting nature of the evidence, Whealy J identified it as being tendered as relevant to:

When it came to the summing up, at an early stage, he again identified two broad categories of evidence:

In respect of the latter, he specifically referred to the conduct of each accused, which, he said, included the possession of the various items seized in the execution of the search warrants. He made specific reference to the material located on the computer hard drives and CDs. (This was not limited to the 33 items the subject of the present ground of appeal, that is, "gruesome" material; it was a reference also to other extremist materials. In this respect, Whealy J did not differentiate those categories.)

He then reminded the jury, and repeated: "If you accept that a particular accused was aware, at least in a general sense of the content of the material found at his home in this way, and had an interest in it, this evidence is relevant to that accused's state of mind. That is, it is relevant to his intention, knowledge, belief or awareness."

A little later, he said: "The Crown's position here is that the intention of each accused may be readily inferred from all that he did and said; and as well from the documents, the various items and, for example, the computer or media material found or located at his premises. You should bear in mind, however, that intention means an intention that is formulated. It is not enough that a person might by [sic] simply contemplating or thinking about the possibility of entering into an agreement to do a criminal act. The Crown must establish that the person actually held the particular intention at the time of entering the agreement. As I have said, simply to muse about something, to contemplate it as a mere possibility, to do no more than think about it, is not the same as a formulated and firmly held intention. It is not sufficient that a particular accused may have been of a like mind or sympathetic to a particular cause ..."

Some time later, Whealy J turned to the cases in respect of the individual accused. With respect to Hasan, he said: "... I think I should point out to you regarding all this material found at Mr Hasan's premises, either on hard drive or on disc, that there is degree of agreement between the Crown and the representative for Mr Hasan about that material. There are only two things I need to mention to you now. The first is that there was no evidence led by the Crown as to the accessing or viewing of any of the files on the computer or any of the files on the CDs. That is common ground between the Crown and Mr Hasan's representative. ... However, I did during the trial give you a direction regarding the disturbing nature of some of the images and the video component on the computer of this material. Once again, I would like to repeat that to you. First, may I direct you that the Crown allegations that the material at Hasan's home is relevant in two ways: First, the Crown says that it is circumstantial evidence relevant to the existence and nature of the scope of the conspiracy alleged. In that way, the evidence is admissible not only in the case of Mr Hasan but also in the case against the other men. Secondly, insofar as you may accept that Mr Hasan was aware, at least in a general sense, of the content of the material at his home, or had an interest in it, it is evidence relevant to his state of mind, his intentions, his belief and, therefore, his participation in the alleged agreement. In that way, of course, the evidence is only admissible against Mr Hasan and not the others."

Reference was also made in the written submissions to a further passage, very much later in the summing up, in which his Honour told the jury: "... the Crown argued that the fact that such a large volume of extremist material was there, was significant evidence pointing to his state of mind." This, it was suggested, unfairly emphasised the Crown position to the detriment of the appellants.

To so extract what was said misrepresents this part of the summing up. In fact, that extract appears when Whealy J was summarising the arguments put on behalf of Hasan by senior counsel. The whole passage is: "The difference between them [that is the Crown and defence counsel] was that the Crown argued that the fact that such a large volume of extremist material was there, was significant evidence pointing to his state of mind. [Senior counsel for Hasan] argued to the contrary." This passage is immaterial to the ground of appeal.

The argument put in respect of this ground was short and relatively simple. We will reproduce it in the words of the written submission. It was: "262. Without any evidence of access to the specific gruesome images the subject of these grounds his Honour was in error in allowing the jury to rely upon them as evidence relevant to the assessment of the existence and nature of the scope of the conspiracy alleged, or as going to the accused's state of mind. It is submitted that only if it could be established that these specific images were knowingly in the possession of the accused could they be utilised by the jury in the manner suggested. Where there was evidence of knowledge of particular images or videos, the items could only be said to be reflective of a state of mind if the jury rejected the evidence of the accused [Hasan] that although they possessed the items they did not embrace, motivate or inspire them (in the manner Hasan stated he viewed the beheading material)."

It was also submitted that the reference to awareness of the material "in a general sense" was "unhelpful". It was submitted that: "If the Crown wished to rely on the gruesome material as evidence of state of mind, then the jury ought to have been directed that they ought be satisfied that the Crown case could establish that the images shown to the jury had in fact been viewed by the accused." Since the evidence adduced in the Crown case could not establish access, those images should not have been admitted, nor relied upon in the manner suggested.

We do not accept these arguments. As we have said in the context of Ground 5, it was not essential to the Crown case to prove that the appellants, or any of them, had in fact viewed any of the material. It is, as a matter of commonsense, unlikely that any accused would amass material of the kind and volume the evidence showed without that having some bearing upon his state of mind. The commonality of the material was also relevant to the interaction between the various appellants and their common interest.

It is true that Hasan gave evidence about the material. This was properly a matter for the jury to consider. In summing up Hasan's case, Whealy J said: "Finally it was Hasan's case that he had not read the books found on his premises dealing with extremist topics. He had not looked at the contents of CDs containing extremist material, generally speaking. It was his case that CDs and documents of this kind were handed out at the prayer hall on Fridays regularly. He admitted he had watched a couple of the execution videos, but he did not like these at all. Media materials had been simply left in his home and he had told his wife to put any Islamic stuff into the computer. His case was that generally speaking he had not looked at any of the documents or the contents of these CDs at all. He had never discussed with anyone committing a terrorist act. He never intended committing a terrorist act and he had not agreed with anyone to commit acts in preparation for a terrorist act ..."

No complaint was made about the fairness of the directions given specifically with respect to Hasan's evidence.

In our opinion, the basis for this ground of appeal is not established. The argument depended upon the proposition that, absent evidence of actual access to the "gruesome" material, that material could not be used either as evidence going to the existence, or nature and scope of the conspiracy, or to the state of mind of any of the appellants. For reasons we have given, we reject that argument.

Accordingly, we reject Ground 6 of Hasan's appeal, and the corresponding grounds of the other appellants.

Ground 5 in Khaled Cheikho's Notice of Appeal is formulated as follows: "His Honour erred in permitting the Crown to lead evidence of so called extremist material, in the absence of a tendency notice as required by s 97(1) Evidence Act 1995; and in circumstances where the probative value of the evidence did not substantially outweigh the prejudicial effect, as required by s 101(2) Evidence Act 1995."

Just what is intended to be encapsulated in the term "extremist material" in this ground was not, either in the ground as formulated, or in the written submissions (nor, indeed, in the oral submissions) defined. Whether "extremist material" is intended to be co-extensive with "gruesome media images" the subject of Grounds 5 and 6 of Hasan's appeal is not clear. There was other material in the trial that might well be classified as "extremist", apart from the images of executions, dead bodies and body parts. It is impossible to know with any clarity just what evidence is the intended subject of this ground of appeal.

In oral argument, it was asserted that objection was taken at trial to the evidence, and that that objection was the subject of the judgment Baladjam [No 50] (the judgment considered under Hasan's Grounds 5 and 6). That judgment records the arguments advanced as being related to s 137 of the Evidence Act. There is no indication in the judgment that objection was taken on behalf of Khaled Cheikho. One thing that is clear is that, whatever objection was taken at trial, it was not on the basis that the evidence should properly be classified as tendency evidence, and therefore subject to the tests required by s 97 and s 101(2) of the Evidence Act. Rather, in oral argument on appeal it was said that "in retrospect" the evidence ought to be so classified. If that were so, then its admissibility was subject to the conditions stated in s 97 and s 101(2).

Since no tendency evidence argument was raised at trial, it is scarcely surprising that Whealy J did not apply those tests, or make findings of the relative probative value and unfair prejudicial effect (if any) of the evidence. It can therefore not be said that his Honour erred in permitting the Crown to lead the evidence in the absence of a tendency notice or the relevant evaluations.

In what seems to be an alternative approach, reliance was placed upon s 95 of the Evidence Act, which provides as follows: "95 Use of evidence for other purposes (1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose. (2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose."

It may be accepted that, even if the evidence were admissible for another purpose, it could not be used by the Crown to prove a tendency on the part of Khaled Cheikho to act in a particular way or to have a particular state of mind. The Crown disclaimed reliance on the "extremist material" as tendency evidence.

The argument is no different from that advanced in support of Hasan's Grounds 5 and 6, and the resolution is therefore the same. The evidence was not tendered as tendency evidence (whether that is assessed by accepting the Crown's disavowal of tendering it for s 97 purposes, or on a closer examination of what the Crown, in truth, sought to prove by its tender). It was therefore unnecessary for Whealy J to apply the s 97 and s 101(2) test.

Nor can it properly be said that, even if the evidence were admissible on some other basis (as was conceded in oral argument), there remained a risk that it could be used by the jury as tendency evidence, and, that, at the very least, a direction under s 95 of the Evidence Act ought to have been given to the effect that it could not be used for that purpose.

The relevant facts sought to be proved by the Crown by the tender of the evidence were:

These were not facts to be proved by tendency evidence. They were facts to be proved by inferences drawn from circumstantial evidence. The circumstances were the common possession of the extremist material, providing the foundation (or part of the foundation) for an inference that other activities of the appellants were undertaken in preparation for a terrorist act or acts. The evidence was relevant also as providing the foundation (or part of the foundation) for an inference that the various appellants agreed with each other appellant, and with the other alleged co-conspirators, to prepare for a terrorist act or acts.

Essentially for the reasons given in relation to Hasan's Grounds 5 and 6, we reject Ground 5 pleaded on behalf of Khaled Cheikho.

An issue was raised in this Court (differently constituted) concerning the indictment. Judgment was given: R v B. No argument was directed to the ground in this Court as presently constituted. We reject it.

Each of these grounds concerns the refusal of Whealy J to dismiss the charge of conspiracy (see [40] above). However, the approaches taken are very different. On behalf of Khaled Cheikho, it was argued that, in declining to dismiss the charge under s 11.5(6) of the Code, Whealy J was in error. On behalf of Hasan (supported by the other appellants) the ground is that, by reason of other circumstances, the prosecution of the charge of conspiracy gave rise to a miscarriage of justice.

It is logical to deal with Khaled Cheikho's ground first.

In what was among the first of the numerous pre-trial applications, all accused sought orders:

On 18 March 2008 Whealy J rejected all applications: Baladjam [No 4]. There is no ground of appeal that asserts error in the rejection of the third of these. Rejection of the second is the subject of Ground 7 of Hasan's Notice of Appeal, which has been dealt with above at [476]. It is only the rejection of the application for dismissal of the conspiracy charged that is relevant to the present ground of appeal. Following the decision Baladjam and Khaled Cheikho sought leave, pursuant to s 5F of the Criminal Appeal Act, to appeal to this Court against the refusal. On 8 October 2008, leave was refused: R v B.

Section 11.5(6) of the Code provides: "(6) A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so."

Reliance was placed upon a proposition that, where the Crown alleges that substantive offences have been committed, they ought to be prosecuted as such, rather than by way of conspiracy.

It is true that, from time to time, courts of high authority have frowned upon the prosecution of criminal conduct by way of conspiracy when the circumstances would permit the prosecution of substantive charges.

The proposition derives from The Queen v Hoar [1981] HCA 67; 148 CLR 32, in which the High Court said: "Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed. As Lord Pearson observed in Verrier [v DPP [1967] 2 AC 195] (at 223-4), the addition of a charge of conspiracy in the same indictment 'will tend to prolong and complicate the trial'. There is even less justification for charging conspiracy and the substantive offence separately and for maintaining the prosecution in respect of the substantive offence after securing a conviction for conspiracy."

Even stronger statements appear in R v Saik [2007] 1 AC 18. In that case, Lord Brown of Eaton-under-Heywood said: "123. As Lord Hope makes plain, the reality here is that the Crown is using the offence of conspiracy purely as a device to circumvent the problems caused in England (although not, it appears, in Scotland) by the duplicity rule. To avoid the need for each substantive offence to be charged separately, thereby absurdly overloading the indictment, the Crown instead charge conspiracy which allows them to roll together into a single charge the events of a continuing course of conduct. There are other advantages too for prosecutors who rely on a conspiracy charge. Small wonder, therefore, that it is often called the 'prosecutor's darling'. But there are limits to these advantages and, given that the mere fact of agreement is sufficient to establish liability for this inchoate crime, it is important that these limits are recognised and not artificially stretched."

It was submitted that the Crown was in possession of sufficient evidence to charge substantive offences under Pt 5.3 of the Code (Terrorism) (see [10] above).

Whealy J recorded seven specific matters advanced on behalf of Hasan that was said to call for the exercise of the discretion conferred by sub-s (6). They may be summarised as follows: (i) the charge (of conspiracy) was "especially imprecise and amorphous"; (ii) there were potential difficulties, in the event of conviction, in sentencing; (iii) that prosecution of conspiracy would add considerably to the length of the proceedings; (iv) that the vast mass of evidence the Crown proposed to adduce to prove the agreement (central to the charge of conspiracy) created a risk of unfairness in that its very weight would be overwhelming and some of the accused "would be buried under the weight of the mass of material", and there was a further risk that the jury would lose track of the cases against the individual accused; (v) that the quantity of material would create difficulties for the jury in recalling issues of credibility and reliability; (vi) that the jury would experience difficulties in distinguishing between the evidence admissible against the individual accused; (vii) that prosecution of substantive charges would produce clearer identification of issues in dispute and a more focussed approach to the facts in issue.

It appears to have been assumed that, even if the court or the Crown acceded to the proposition that the conspiracy charge should be replaced with substantive charges, the prosecution of those charges would have been by joint trial. This, in our opinion, seriously diminishes the weight of propositions (iii), (iv), (v), (vi) and (vii). Indeed, in our opinion, the prosecution of separate substantive offences would greatly exacerbate many of those difficulties. However, we will come to that in due course.

Whealy J rejected all propositions. He did not accept that the charge of conspiracy (even as particularised) was "vague or amorphous". He considered that a joint trial of a number of substantive offences (of preparation for a terrorist act or acts) would itself be complex and "fairly chaotic", and create greater difficulties than would a conspiracy trial in relation to the admission of evidence, and classification of its admissibility against individual accused. He did not accept that the material would be overwhelming, resulting in individual cases being "buried under the weight of the mass of material".

His findings may be discerned in the following passages from the judgment: "57 The Crown case here is that these nine men were willing participants in a wide-ranging conspiratorial ring. No doubt, some of their individual activities might have exposed them individually to a prosecution for a substantive charge or charges under the terrorism provisions of the Code. Such a charge or charges would not, however, have adequately revealed the wide-ranging, extensive and ongoing nature of the organisation. The reality of the Crown case, as I see it, is that it is only by means of the conspiracy charge that the full range nature and scope of the agreement and the activities engaged in by the group, if the Crown case be accepted, can be revealed. The filing of individual charges against individual members of the organisation simply would fail to reflect and portray the real nature of what was going on. The remarks of Lee J [see below] in relation to a narcotics ring have an even greater immediacy and cogency in the case of an extensive organisation set up to undertake a series of activities in preparation for a terrorist attack or attacks which, if implemented, could destroy and damage the lives of countless citizens of this country. 58 ... As I have said, anything short of a conspiratorial charge would not paint the true picture of what was going on over these many months. It would, if the Crown case be accepted, not expose the true criminality of the individuals or the group, nor the far-reaching extent of the conspiracy."

The reference to "the remarks of Lee J" was a reference to the decision of this Court in R v Shepherd (1988) 37 A Crim R 303. It was there argued that it was unfair to charge the appellant with conspiracy rather than with a series of substantive charges.

The selection of charges to bring against an alleged offender is essentially an exercise of prosecutorial discretion. As a general principle, the exercise of that discretion is unreviewable: Maxwell v The Queen [1996] HCA 46; 184 CLR 501, at 512 and 534, Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265 at [37], Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483 at [33]-[34], Magaming v R [2013] HCA 40; 302 ALR 461 at [20]-[22] and James v The Queen [2014] HCA 6; 88 ALJR 427 at [37].

It is only in rare cases (if at all) that courts will interfere with that discretion. In part, at least, that is a feature of the doctrine of separation of powers. Section 11.5(6) of the Code is a statutory incursion into the general principle. However, in the consideration of the exercise of the discretion conferred by s 11.5(6), courts should not lose sight of the principle or the reason for its existence. Section 11.5(6) permits a court to interfere in the exercise of the prosecutorial discretion only where it considers that the "interests of justice require it" to do so. It is clear that Whealy J did not consider that the interests of justice required him to dismiss the charge.

It is to be observed that, in Hoar, the Court went no further than to describe the preferring of conspiracy charges as "undesirable" in circumstances where "there is a sufficient and effective charge that this offence has been committed". And it is to be further observed that those remarks were made in the context of a case where both conspiracy and substantive charges had been laid.

It can be seen from the second sentence of the passage extracted from Hoar that a concern (if not the concern) is the prospect of prolonging and complicating the trial.

The application of Hoar has been considered on a number of occasions. For example, in Shepherd, Street CJ said: "This was a case in which the Crown set out to establish participation in a wide ranging conspiratorial ring. It is to be contrasted very sharply with a case in which there has been a one off transaction involving the committing of a substantive offence. In cases of that sort courts have frequently said where two or more persons are involved in such a substantive transaction then they should be charged with the substantive offence rather than the conspiracy. There is, however, a very significant discretion [sic - ? difference] between a Crown case which involves essentially proof of a substantive offence being brought forward under a charge of conspiracy and a Crown case, such as the present in which the allegation was one of a highly active ring operating over a period of time and effecting a number of transactions all within the same organisational framework in which there were a number of offences being committed. Where the Crown case involves proof of a ring of criminality, whether it be in drug importing or trafficking, whether it be in the stealing and recycling of particular assets such as cars, whether it be in social service frauds, or whether it be in some other activity of a criminal nature in which there can be seen to have been established an on-going organisational framework for general activity, then I see no necessary obligation on the Crown to select particular substantive offences and to proceed to trial on an indictment charging those, rather than one which accords with the reality of the situation, namely, a charge of a conspiracy to set up and operate the organisation."

Lee J, who agreed with the Chief Justice said: "There are cases decided in the High Court in which criticism has been made of the use of the charge of conspiracy by the Crown in certain circumstances. Without in any way suggesting that those cases are not binding on this Court it is appropriate in the present case to make the observation that in circumstances such as those shown in this case it is entirely proper - and indeed in the interests of the community - that charges of conspiracy be preferred. Where, as here, the evidence available to the prosecuting authority reveals that there is a group of persons under the control of one or some who direct the activities of the other for the express purpose of committing breaches of the narcotic laws in this country it is in the public interest that that organisation be exposed in the court for what it is and a charge of conspiracy is the most effective way of achieving that. It is not often mentioned but it is never to be forgotten that men acting in combination to achieve unlawful ends present a far greater evil and danger to the community than do the acts of individuals acting alone to achieve their nefarious ends. The evidence in the present case discloses a drug ring carrying out forbidden drug importation on a huge scale."

In R v El-Kotob [2002] VSCA 109; 4 VR 546, Vincent JA said: "42 No member of the High Court in Hoar suggested that substantive charges must always be laid in preference to a charge of conspiracy or that there may not be circumstances in which a presentment could properly contain both a count of conspiracy and counts relating to substantive offences. However, where 'a sufficient and effective charge' relating to a substantive offence was available, it was considered to be inappropriate to lay a charge of conspiracy. Although the attributes of such a charge were not identified, it would seem to be reasonably apparent that their Honours contemplated the availability of a charge or charges that properly reflected the real criminality involved in the conduct and enabled, upon conviction, the making of an appropriate punitive response to it. 43 Often criminal activities pursued as a consequence or in the implementation of an unlawful agreement are regarded not only as overt acts demonstrating the commission of the crime of conspiracy but are punished as incidents of it. In those cases the most serious features of the offenders' conduct may be perceived as being related to the development of the criminal design rather than its implementation. That was the manner in which the Federal Court dealt with the situation in Hoar. The specific statutory offences encompassed by the overt acts almost certainly did not represent the total criminality encompassed by the conspiracy. This situation may be contrasted with that presented in a case where the offenders had engaged in planned bank robberies. The commission of the substantive offence in that case can be seen to possess a much higher degree of criminality of itself. The conspiracy is subsumed by the substantive offence. However, there may well be cases where, in order that the full extent and character of the criminality involved may be properly reflected in both the convictions recorded against the respective participants and any further penalties imposed upon them, a distinction is appropriately made between the conspiracy and the consequent but nevertheless separate substantive offences so that convictions are recorded on both. What must be avoided, as I understand the judgments in Hoar, is not necessarily the joinder of counts but the presentation of the individual before the court on inappropriate counts and the potential for undue complexity with its risks of unfairness." (italics in original)

These remarks were endorsed by this Court in Chung v The Queen [2007] NSWCCA 231; 175 A Crim R 579.

In Hoar, the High Court spoke only of "undesirability". It did not identify any circumstance in which an election on the part of the prosecution to proceed on a conspiracy charge rather than a substantive offence was so fundamentally flawed that it ought to be corrected by judicial determination. It is apparent that the High Court did not have in mind the prosecution of individual substantive charges where, in order to reflect the criminality alleged, the indictment would contain numerous individual counts.

The written submissions on appeal contained the following: "175 ... Indeed, it could be said that the conspiracy charge, which the appellant faced, rolled up over 100 charges, each of which was particularised as an overt act. Hence, judicial pronouncements on the practise (sic) of overloading indictments are particularly apt." And: "178 Since the nature of the allegation levelled against the appellant was that he acted in concert with his co-conspirators, it would have been inevitable that evidence of such concerted action would have been led by the Crown, regardless of whether a conspiracy count, or substantive counts, had been preferred. Remarkably, the Crown's consistent position was that all evidence, which would be admissible in relation to a conspiracy count, would similarly be admissible, if substantive counts were preferred. In those circumstances, the suggestion that the level of criminality of each accused could not be portrayed is, with respect, untenable."

The decision of Whealy J to refuse to dismiss the conspiracy charge was akin to an exercise of judicial discretion. Section 11.5(6) of the Code does not confer power on a court to dismiss a charge of conspiracy unless it reaches the requisite view, that is, that the interests of justice required it to do so. This Court can only interfere if it be shown that his Honour erred in one of the ways set out in House v The King [1936] HCA 40; 55 CLR 499. There is nothing in the submissions filed on behalf of Khaled Chiekho that identifies any such error. Also absent from the argument was any identification of disadvantage or injustice that would or might accrue to Khaled Cheikho by the prosecution of a conspiracy charge.

Indeed, on examination, the argument advanced on his behalf strongly supports the decision. For example, it was argued that each of the various overt acts of the conspiracy on which the Crown proposed to rely qualified as a substantive act in preparation for a terrorist act, and therefore amounted to an individual substantive offence. The acts referred to included, for example, the downloading of media material, acquisition or attempted acquisition of material that could be used in a terrorist act, and many others. That is just the acts which could be said to qualify as substantive offences against s 101.6 of the Code. An examination of the terrorism provisions of the Code shows that there are many others - possessing things connected with terrorist acts (s 101.4), collecting or making documents likely to facilitate terrorist acts (s 101.5). The very prospect of prosecuting these as individual offences demonstrates the fallacy in the argument.

We have above commented that, absent from the argument, was any identification of any disadvantage or injustice that would or might accrue to Khaled Cheikho by the prosecution of individual substantive charges rather than a single count of conspiracy. In the light of the concession that the evidence of acts of each accused would have been admissible in relation to each other accused, it can be seen that there could be no such disadvantage or injustice. Far from it - the appellants would have been, at the very least, in no better position. But prosecution of multiple substantive offences as joint criminal enterprises would present extraordinary complexities for the court, for the jury, and, indeed, for defence counsel.

The argument advanced demonstrates, in our view conclusively, that the factual findings and the conclusion of Whealy J were correct. We reject Ground 4 of Khaled Cheikho's appeal.

The precise terms in which Ground 8 of Hasan's Notice of Appeal is framed are: "The trial miscarried as a result of the joint conduct of a conspiracy trial in combination with the events and asserted errors the subject matter of grounds 1 to 2 and 4 to 6, above."

The ground is not that the decision was erroneous, but that, when seen "in combination" with other events and asserted errors (the subject of other grounds of appeal) the decision not to dismiss the charge was productive of a miscarriage of justice. The proposition is encapsulated in the last sentence of the written submissions filed on behalf of Hasan, which is: "280 ... with the benefit of hindsight the trial miscarried because his Honour declined to dismiss the conspiracy charge contained in the indictment pursuant to the provisions of s 11.5(6) of the Code."

While steering away from challenging any of the reasoning of Whealy J, senior counsel for Hasan submitted that the conspiracy alleged against the appellants involved "an added layer of complexity". That, it was said, was because the conspiracy alleged was an agreement to do a "preliminary act or acts" that is, an act or acts "in preparation for, or planning, a terrorist act" (s 101.6(1) of the Code).

It is difficult to see why this involves "an added layer of complexity". Section 101.6 of the Code provides that doing an act or acts in preparation for, or planning, a terrorist act is an offence. There is nothing complex about that. The mere fact that it is rare or unusual for preparatory acts to be made criminal offences does not add to the complexity of a trial in which such acts are charged (and defended): see Lodhi v The Queen [2006] NSWCCA 121; 199 FLR 303.

Senior counsel for Hasan then pointed to events following the decision of Whealy J. Specifically, he referred to the publicity that surrounded the Melbourne trial (see Grounds 1-2 above). He pointed also to a change in the Crown case concerning Hasan's presence (or otherwise) at the "maximum damage conversation" (see [133] above). Ultimately, despite its initial position that Hasan had been present, the Crown accepted that it could not establish that fact. All this, it was argued, "exacerbated" the complications of a joint trial of a conspiracy charge.

Finally, it was said that the fact that the charge was conspiracy permitted evidence to be admitted against Hasan that otherwise would not have been so admissible. This included evidence of the acquisition and accumulation of weapons and ammunition by others, possession of instructional material with respect to bomb manufacture, by others, and other pointers to the existence of a joint criminal enterprise.

We are unpersuaded that the later events on which reliance was placed would, if they had been known at the time of the decision, have had any bearing upon it. We are unable to accept that the publicity surrounding Benbrika and the Melbourne group in any way affected the appropriateness of a charge of conspiracy. In fact, this appeared to be relied upon on the basis that Grounds 1 and 2 were upheld. We have concluded that they should not be upheld. Similarly, the fact that the Crown later accepted that it could not establish that Hasan was present at the "maximum damage conversation" is entirely irrelevant to whether prosecution of Hasan by way of a conspiracy charge was inappropriate, or whether such prosecution resulted in a miscarriage of justice.

The reliance on the evidence of acquisition and accumulation of weapons by others, and other items, is misplaced. That that evidence would be admissible on a conspiracy charge was known at the time Whealy J made his decision which, as we have said, is not the subject of criticism under this ground.

The ground of appeal as formulated also relies upon "asserted errors" the subject matter of Grounds 1 to 2 (the Melbourne trial) and 4 to 6 (the LeT evidence). Since we have rejected those grounds, they can have no bearing on the question of miscarriage of justice arising from prosecution of a conspiracy charge.

We reject Hasan's Ground 8.

The submissions to which we have referred were made on behalf of Hasan, and, unlike some others, related particularly to his situation. It appears to be put on his behalf that he was, to a greater extent than the other appellants, disadvantaged by the prosecution of a conspiracy charge.

While all other appellants relied on the same ground, none addressed separate submissions to it. Those grounds must also be rejected.

By Ground 2 of his Notice of Appeal, Khaled Cheikho complains of three aspects of the Crown prosecutor's final address, which, it was submitted, gave rise to a miscarriage of justice. By Ground 3 he complains that a miscarriage of justice was occasioned by the Crown prosecutor's use of rhetorical questions.

The three aspects of the final address the subject of Ground 2 are what was said to be: (i) A submission that Khaled Cheikho was complicit in the acquisition of ammunition by an alleged co-conspirator, Mazen Touma; (ii) A submission that Khaled Cheikho's role in the conspiracy was one of leadership; and (iii) A submission as to certain inferences that the jury were invited to draw.

The terms of the submission said to have been put to the jury were not spelled out, and this Court was not directed to any passages in the transcript of the Crown prosecutor's final address. Given that the Crown prosecutor's address extended over 11 days and covered more than 500 pages of transcript, we have been unable to locate any passage to which this ground refers.

The Crown did not dispute that a submission of the kind had been made, but argued that it was justified by the evidence. We shall therefore proceed on the basis that a submission of the kind of which complaint is now made was made to the jury, without knowing its precise terms. The real issue is whether there was evidence sufficient to support such a submission. On behalf of Khaled Cheikho it was (in this Court) submitted that what was put to the jury crossed the line of inviting the jury to draw an available inference, and, instead, invited conjecture.

The evidence in relation to this apparently minor issue is in a relatively small compass. There was evidence that between April and June of 2005 Touma and George Lord were significantly involved in the purchase (Touma) and supply (Lord) of large quantities of ammunition. (Touma was named in the indictment as an alleged co-conspirator, but pleaded guilty to substantive charges. His being named as an alleged co-conspirator meant that conduct alleged against him as having been carried out in furtherance of the conspiracy was admissible against all accused.) There was also evidence that, during the same period, Touma was in regular contact with Khaled Cheikho. A number of telephone conversations were intercepted and recorded. It was not suggested by the Crown that there was anything in the conversations recorded that was directly incriminating; rather, it was suggested that the language of the conversations was guarded, and sometimes coded. The recorded conversations disclosed that the two men made an arrangement to meet in April 2005.

In the early afternoon of 3 June, police seized a large quantity of ammunition from a van parked outside Lord's premises. A few hours later, Touma telephoned Khaled Cheikho, and told him to "come quick". There was also evidence that Khaled Cheikho was involved in the organisation of the two camps (see [120]-[122]) at which shooting took place.

In the context of the whole of the evidence, it was not improper for the Crown prosecutor to invite the jury to draw an inference that Khaled Cheikho was involved with Touma in the purchase of ammunition. That that is so is confirmed by two independent circumstances. The first is that no complaint was made at trial about the submission although the submission was challenged during the final address on behalf of Khaled Cheikho. This was the correct way of dealing with the submission about whether an available inference ought or ought not to be drawn. The second circumstance is that the inference the jury was invited to draw conforms with what Whealy J held for sentencing purposes: [18] and [99] RoS. His Honour had the advantage of hearing and seeing the whole of the evidence in its context, an advantage not available to this Court. Plainly, the jury was given adequate directions about what inferences could or should be drawn. There is no ground of appeal that suggests otherwise.

The passages of which complaint is made in this respect are these. At an early stage in the address, in the context of identifying "key features" (of which he nominated five), the transcript records that the Crown prosecutor said: "And fourthly, the roles of the accused Elomar and Khaled Cheikho as what the Crown submits can be shown to be leaders, the leaders of the team, as it were, the coordinators and to (sic - the) thinkers, if you like, of the team ..."

At a later point, in reference to evidence that Khaled Cheikho had made some investigations or enquiries concerning the acquisition of the particular firearm (AK-47), the Crown prosecutor said; "It is one of the reasons why we say that Khaled Cheikho is a key person in this case, along with Elomar, one of the leaders, one of the thinkers, and one of the coordinators of this group, who on the Crown case was involved in this agreement that we have alleged in the indictment."

The latter of these passages followed immediately upon a reference to evidence given by Khaled Cheikho's brother (Adnam) to the effect that he had never known his brother to fire a gun, and evidence that, when he had the opportunity of doing so (for example at the two camps) he showed no interest in doing so.

This gave rise to the submission in this Court that the Crown prosecutor had engaged in what was called "Rumsfeldian argument". What was categorised as "Rumsfeldian argument" was the proposition that the absence of evidence is equivalent to evidence of absence. In other words, it was submitted in this Court, that the logical reasoning process in which the Crown invited the jury to engage was that, because it could not adduce direct evidence of Khaled Cheikho's involvement in, for example, acquisition or use of firearms or ammunition, then the inference ought to be drawn that he occupied a more senior role in the conspiracy. Reliance was placed upon a decision of this Court in Tu v The Queen [2011] NSWCCA 31; 205 A Crim R 566 at [132]-[135] per McCallum J. This appears to have been made in the context of an observation sometimes made in cases of drug dealing, when it may be thought that those more actively involved in the physical activities associated with the dealing are less likely to occupy senior roles; conversely, those who do occupy senior roles may keep themselves physically distant from the day-to-day handling of the drugs. In Tu, McCallum J said: "... The observation referred to is in the nature of a concession, sometimes appropriately made in favour of an offender, that a greater and more detectable level of activity does not necessarily indicate higher status in the operation. The converse proposition has no role in sentencing as a substitute for evidence. It is neither logical nor fair to assess an offender as having a more senior role on the basis of what is anecdotally revealed by an absence of evidence."

In his final address, in support of the submission that Khaled Cheikho had a "leadership" role, the Crown prosecutor referred to evidence of telephone conversations in which, it might be inferred, Khaled Cheikho avoided direct reference to anything that might be incriminating. It was, in our opinion, legitimate for him to do so. It is necessary, as McCallum J pointed out, for there to be an evidentiary basis for an inference to be drawn. When such an evidentiary basis exists, the inference is available. Whether the jury draws it or not is a matter within their province.

Again, no complaint was made at trial that a submission was made to the jury that was unavailable. Again, the submission finds ultimate support in the findings made by Whealy J on sentence: [106] RoS.

The "other inferences" the subject of the third complaint which the Crown prosecutor mentioned during his final address concerned the interpretation that he submitted ought to be placed on various intercepted telephone conversations between Touma and Khaled Cheikho. In this Court it was submitted that these proposed inferences were not supported by any evidence.

The answer to that is that the jury was not confined to the isolated conversations discussed in the submissions in support of this ground; the jury had the whole of the intercepted telephone conversations (and personal conversations recorded on listening devices) as well as all of the other evidence. All of that was capable of throwing considerable light upon what otherwise might appear to be meaningless, innocuous, or uninterpretable conversations. Again, no complaint was made at trial.

In our opinion Ground 2 of Khaled Cheikho's appeal is without foundation and ought to be rejected.

Ground 3 complained of "rhetorical questions" put by the Crown prosecutor during final address. In the written submissions, counsel gave three examples of "rhetorical questions" posed by the Crown prosecutor during the course of his final address. These were:

in referring to text messages (which, it was acknowledged in the written submissions, were in code), he asked: "Why the subterfuge? Why use dedicated phones in false names used for the purpose only, it seems, of communicating by text message ...? Why the John Pham service, used almost exclusively for text messaging between Elomar and the Tom Clincley service, that is Khaled Cheikho, all at about this time?";

in addressing with respect to evidence that Khaled Cheikho had attended a store with Touma and Sharrouf, where Sharrouf was stealing clocks and batteries, the Crown prosecutor said: "Interesting. They were there for about an hour, more than an hour, those three people. As I say, Khaled Cheikho and Mazen Touma leave empty handed. What did they go for? Chips? Or was the idea that they would go for batteries and the digital alarm clocks? ... is it really suggested that Messieurs Touma and Cheikho did not know what he was doing? What were they doing there for an hour? Not buying chips.";

in addressing with respect to some motor vehicles, the keys of one of which were located at the home of Khaled Cheikho, the Crown prosecutor said: "So the alleged co-conspirators, the Crown says, clearly associated with both of those vehicles, were able to keep beneath the radar, so far as their associations with those vehicles was concerned. Was it coincidence? Of course not. Those vehicles were required for the purpose of use in pursuit of this conspiracy, particularly in the concealment exercise."

The submissions were that the questions invited speculation on the part of the jury, and impermissibly shifted the burden to Khaled Chiekho to provide a positive explanation for his conduct.

The argument relied heavily upon the 2012 decision of this Court in Wood v The Queen [2012] NSWCCA 21; 84 NSWLR 581. The Court in that case held that the use by the Crown prosecutor of rhetorical questions in final address caused a miscarriage of justice: see [604] Wood.

The circumstances in Wood were very different to the circumstances of the present case. Mr Wood was on trial for murder. The Crown case was entirely circumstantial. Towards the conclusion of the trial the Crown prosecutor sought leave to provide to the jury a list of 50 written questions that he claimed were relevant to the resolution of the issues. That leave was refused. Notwithstanding that, the Crown prosecutor posed the 50 questions, inviting the jury to make "a few brief notes" to remind themselves of what the questions were, and indicated that he would pause from time to time to allow them to do so.

The posing of the questions commenced with this: "I don't know exactly what [senior counsel for Mr Wood] is going to say to you, I am going to suggest to you that there are 50 questions that you should consider, because these are questions, the answers to which will assist you in deciding how you resolve this case. Most of them are things that I have already said to you. ... What I am suggesting to you is that during the course of [senior counsel for Mr Wood's] address, you pay particular attention to any responses that he might have to these questions. He might choose not to respond to them at all, but, if he does choose to respond to them, I suggest to you that they might be of particular importance to you in resolving this case." (italics added)

Of that, McClellan CJ at CL said: "605. ... Asking questions, even in a rhetorical manner, and inviting the jury when considering its verdict to consider whether the applicant had provided satisfactory answers to the questions was an impermissible course for the prosecutor to follow." (italics added) That conclusion was reached, because the invitation to the jury to consider whether an accused person had provided satisfactory answers to the questions amounted to a reversal of the onus of proof.

Other questions, McClellan CJ at CL held, invited "consciousness of guilt" reasoning, which had already been rejected by the trial judge: [617] Wood. Moreover, the questions and the comment that the answers "all point to the guilt of the accused" involved a breach of s 20(2) of the Evidence Act in that they suggested that Wood had failed to give evidence because he was guilty of the offence concerned.

Finally, some of the questions "invited speculation" about the actions of Wood and another person and were unreasonably prejudicial to Wood.

It is apparent that it was an accumulation of flaws in the manner in which the Crown prosecutor addressed that resulted in this Court finding that the Crown prosecutor's final address caused a miscarriage of justice. Not the least of the reasons was the sheer number of questions. To that we might add, reading the questions to the jury in the form of a catalogue must have emphasised what underlay the submission - that is, that Wood had failed to provide answers. In R v Rugari [2001] NSWCCA 64; 122 A Crim R 1, cited in Wood, this Court also held that a miscarriage of justice was caused by the Crown prosecutor putting rhetorical questions to the jury. In that case, also, the questions quite clearly demanded that the accused provide answers. Two examples of many were recited in the judgment. They were at [35]: "Well he's got to explain why he left the nightclub without speaking to her and put the clothes on the verandah" and "How am I [referring to the appellant] going to explain the fact that this woman has a hole in her stomach, that she's been stabbed through the abdomen, and even her liver, how am I going to explain that?" Carruthers AJ, with whom Spigelman CJ and Sperling J agreed, said that those questions reversed the onus of proof. It is to be observed that the questions were specifically framed so as to demand an explanation from the accused.

Libke v The Queen [2007] HCA 30; 230 CLR 559 also involved asserted misconduct on the part of a Crown prosecutor, although not in final address, but in cross-examination of the accused. Hayne J, with whom Gleeson CJ agreed, began by observing that: "71 A criminal trial in Australia is an accusatorial and adversarial process. In that process, prosecuting counsel has a role that is bounded by long-established duties and responsibilities." (internal citations omitted) His Honour said that: "A central, even the central, element in that role is 'ensuring that the Crown case is presented with fairness to the accused'." (italics in original, internal citation omitted)

All members of the Court agreed that the conduct of the Crown prosecutor during cross-examination exceeded the bounds of propriety. Two members of the Court (Kirby and Callinan JJ) considered that the impropriety was such as to call for the convictions to be quashed, and for a re-trial to be ordered. The remaining three members of the Court (Gleeson CJ, Hayne and Heydon JJ), while expressing significant disapproval of the Crown prosecutor's conduct, nevertheless concluded that the impropriety was not such as to have resulted in a miscarriage of justice.

The question arose again in this Court in Lane v R [2013] NSWCCA 317. Again, in the context of a trial on the charge of murder, where the Crown case was entirely circumstantial, the Crown prosecutor posed a series of 10 questions to the jury. This Court said: "123 It is inappropriate and unsatisfactory for a prosecutor to ask questions of a jury in the course of closing address which are designed to undermine or disparage the defence case because of the risk that it will give the jury the impression that the accused, contrary to the fundamental principle that the accused is presumed to be innocent, bears an onus of answering such questions." The Court then referred to Wood, and said: "124 It does not, however, follow from the general undesirability of a prosecutor posing questions in that way that in every case where such questions are asked, the verdict must be quashed because of a miscarriage of justice. The question is whether the departure from the standards expected of a prosecutor has affected the accused's fundamental right to a fair trial. If it has, then this court must intervene. If it has not then, while such a departure is always regrettable, a departure that is inconsequential in the context of the whole trial, including the summing up, will not require the conviction to be quashed: see Whitehorn v R [1983] HCA 42; 152 CLR 657 at 663-664 per Deane J."

In this case, in a lengthy address, the Crown prosecutor framed his submissions in the form of questions on three occasions. From the transcript references provided, it can be seen that these were spaced over a period of time. They were not in the form of a catalogue as was the case in Wood.

Nor were they framed so as expressly to cast the obligation to provide answers on any of the appellants; rather, they can be seen to be questions which the jury might ask themselves. There was no equivalent to the suggestion, in Wood, that senior defence counsel might provide answers to the questions, or the suggestion, in Rugari, that the accused had to "explain" certain circumstances.

While it may be considered, in the aftermath of Wood, to be unwise for the Crown prosecutor to engage in advocacy of this kind, the question remains, as was said in Lane, whether any departure from the standards expected of a prosecutor has rendered the trial unfair.

In our opinion that question cannot reasonably be answered other than in the negative. We therefore reject Ground 3 of Khaled Cheikho's Notice of Appeal.

No written or oral submissions were directed to Ground 6 of Khaled Cheikho's Notice of Appeal. In our opinion it should be rejected.

As framed, this ground is obscure and mysterious. It calls for significant elucidation (which will involve some repetition of matters already mentioned).

The appellants were charged with conspiracy to do acts in preparation for a terrorist act (or acts). Section 101.6(1) of the Code provides: "(1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act. Penalty: Imprisonment for life."

As stated previously, a "terrorist act" is defined in s 100.1(1) of the Code as follows: "terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public."

Sub-sections (2) and (3) (referred to in sub-par (a) of the definition) are in the following terms: "(2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person's death; or (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person's death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv)to create a serious risk to the health or safety of the public or a section of the public."

The effect of sub-s (3) is to exclude from the definition of "terrorist act" conduct that is properly characterised as "advocacy, protest, dissent or industrial action" and is not intended to have any of the effects specified in sub-par (b). Thus, by way of example: an action that causes a person's death, that is done with the intention of advancing a political, religious or ideological cause, and with the intention of coercing or influencing by intimidation a government, will be a terrorist act (and carry a penalty of life imprisonment) unless the action both (i) "is advocacy, protest, dissent or industrial action" and (ii) is not intended to cause serious physical harm (to any person), or death (of any person), or to endanger the life of any person other than the person taking the action, or to create a serious risk to public health or safety. It is to be observed that conduct that otherwise would be a terrorist act, but that is advocacy, protest, dissent or industrial action, but is done with the intention of causing serious property damage is not excluded.

Thus, by sub-s (3), conduct that would otherwise come within the definition of "terrorist act" is protected, but to a limited extent. What sub-s (3) does is to exclude such conduct from the extreme consequences of being classified as terrorism (one of those consequences being a potential penalty of life imprisonment): sub-s (3) does not otherwise protect conduct that would nevertheless be criminalised by other statutory provisions.

In order to succeed on the conspiracy charge in the indictment, it was necessary that the Crown prove that the terrorist act or acts contemplated by the appellants were undertaken with both of the intentions specified in pars (b) and (c) of the definition in sub-s (1). It was also necessary that the Crown prove that the act or acts contemplated came within s 100.1(2) of the Code; that is, (we paraphrase and summarise) were such that they would cause serious physical harm or death to a person, cause serious damage to property, endanger the life of another person, create a serious risk to the health or safety of the public or a section of the public, or seriously interfere with, seriously disrupt or destroy an electronic system.

It was further necessary that the Crown prove that the act or acts contemplated by the appellants did not come within sub-s 100.1(3); that is, it was necessary that the Crown prove either of the following: (It was common ground at trial and on appeal that the onus lay on the Crown to prove that the action contemplated by the appellants did not come within sub-s (3).)

So much was uncontroversial. This ground of appeal is directed to what were called "characteristics" of a "terrorist act". The "characteristics of a terrorist act" were drawn from the definition in s 100.1(1) and (2) of the Code. The ground asserts that the directions that were given were "unfair and unbalanced and constituted a miscarriage of justice".

There is obviously some complexity in explaining to a jury what the Crown was obliged to prove. That is particularly so in relation to s 100.1(3) of the Code, which requires the Crown to prove a negative. The course taken by Whealy J was to provide the jury, in advance of his oral summing up, with written directions. The written directions specified six elements of the offence on the indictment, each of which had to be proved beyond reasonable doubt. The written direction in relation to the element numbered six was as follows: "6. In addition, the expression 'acts in preparation for a terrorist act or acts', which is used in elements 1 to 5 inclusive, requires in relation to each of those elements that you be satisfied beyond reasonable doubt that the accused intended the 'acts in preparation' to be in preparation for a terrorist act or acts: that is, an act (or acts) having all of the essential characteristics of a terrorist act. The essential characteristics of a 'terrorist act' are set out in paragraphs 1) to 4) below. So that for you to find Element 6 has been proved you must be satisfied beyond reasonable doubt that: 1) the accused intended that the acts in preparation would be for an action, or threat of action, involving either or both: (a) the detonation of one or more explosive devices, OR (b) the use of firearms. AND 2) the accused intended that the acts in preparation would be for an action or threat of action to be carried out or threatened in Australia: (a) with the intention of advancing a political, religious or ideological cause, namely the pursuit of violent jihad; AND (b) with the intention of coercing or influencing by intimidation the Government of the Commonwealth, or a State or Territory or foreign country, or part of a State, Territory or foreign country; OR (c) with the intention of intimidating the public or section of the public. AND 3) the accused intended that the acts in preparation would be for an action or threat of action of a kind which, if carried out, would in the ordinary course of events have caused: (a) serious harm, that is physical harm, to a person; OR (b) serious damage to property; OR (c) a person's death; OR (d) danger to a person's life, other than the person taking the action; OR (e) the creation of a serious risk to the health or safety of the public, or a section of the public BUT 4) the Crown must also prove beyond reasonable doubt that the action to be done or threatened was not advocacy, protest, dissent or industrial action. If there be a reasonable possibility, however, that the action to be done or threatened may be characterised as advocacy, protest, dissent or industrial action, then the Crown must prove beyond reasonable doubt that the action to be done or threatened was intended to cause serious harm, that is physical harm, to a person, or to cause a person's death, or to endanger the life of a person (other than the person taking the action), or to create a serious risk to the health or safety of the public, or a section of the public." (underlining in original; we have italicised those parts of the direction which are the subject of this ground of appeal) There followed notes with respect to various aspects of the directions.

It is the "characteristics" of a terrorist act numbered (3) and (4) that are the subject of this ground of appeal. (It will be observed that item (4) is not a "characteristic" of a terrorist act; rather, it is a circumstance that, if not excluded by the Crown, protects what otherwise would be a terrorist act. For the purposes of considering this ground of appeal, it can be treated as a negative "characteristic".)

On the first day of the summing up his Honour took the jury through the written directions. His directions with respect to s 100.1(2) of the Code have not attracted criticism. Whealy J read to the jury that part of the written directions which pointed out that, if the jury found, as a reasonable possibility, that the action to be done or threatened could be characterised as advocacy, protest, dissent or industrial action, then the Crown was obliged to disprove that it was done with the intention stated in s 100.1(3). He said: "So the first step is that the Crown must satisfy you beyond reasonable doubt that the action to be done or threatened cannot be characterised as any of those things: namely, advocacy, protest, dissent or industrial action. You will understand, of course, that it was not the intention of the Parliament to punish legitimate acts of genuine protest, nor was it to punish the promotion of a lawful cause as though it were an act of terrorism. In this area of advocacy, protest, dissent or industrial action, the law draws a distinction between actions or threats of actions which are, on the one hand, intended to cause, and if carried out, would cause serious physical harm to a person, or even a person's death, and on the other hand, the situation where an action or threat of action was intended to cause, and if carried out, would have caused serious damage but only to property. These distinctions in the law require that the Crown must prove beyond reasonable doubt that the action to be done or threatened was not advocacy, protest, dissent or industrial action. It must exclude that as a reasonable possibility. If, however, there is a reasonable possibility that the action to be done or threatened was advocacy, protest, dissent or industrial action, then the Crown must prove beyond reasonable doubt that the action was intended to cause harm, physical harm that is to a person or cause a person's death or to endanger the life of a person other than the person taking the action, or to create a serious risk to the health or safety of the public or a section of the public." (italics added) He then gave an example of protest action which would not come within the section. He went on to say: "Now, there is not really any suggestion in the evidence in the present trial that the agreement allegedly entered into between the individual conspirators had anything to do with a relatively harmless piece of advocacy, protest, dissent or industrial action. The crux of the defence case in each instance is that even if there were a criminal conspiracy afoot, as the Crown suggests, each of the present accused was simply not a party to it. Indeed, there was no suggestion on the evidence that mere advocacy, protest, dissent or industrial action was contemplated at all. No-one has seriously suggested otherwise. [Senior counsel for Elomar] did pose an 'even if' submission, but he did not suggest it was part of his case that his client, Mr Elomar, was actually planning to bomb a building or buildings as a protest against the Australian Government. Far from it ..."

At a break in the summing up which followed shortly after this direction, junior counsel for Elomar complained of the direction last extracted - the references to the absence of any suggestion that the appellants had engaged in advocacy, protest, dissent or industrial action. His complaint was that such a direction implied a reversal of the onus of proof. There followed very lengthy debate. The following day Whealy J acceded to the submissions and told the jury that he wished to make it clear that he was not intending to convey that Elomar carried any onus to prove anything in the trial. He reminded the jury that the onus of proof of all elements, including all four of the "characteristics" of a terrorist act, lay "fairly and squarely on the Crown".

At the conclusion of the summing up, senior counsel for Elomar sought further directions, providing written submissions. What followed was a somewhat acrimonious debate in which a primary issue was the precise language used by Whealy J. (Counsel would not have had a transcript of the summing up.) Whealy J declined to redirect, principally, it seems, because he did not accept that he had directed the jury as stated in the written submissions.

In the ground of appeal as formulated, the complaint is that the directions were "unfair and unbalanced and constitute[d] a miscarriage of justice". As the argument developed on appeal, however, it became apparent, and it was accepted, that the basis for the complaint was that part of the direction, italicised above, in which Whealy J referred to "legitimate acts of genuine protest". The complaint was simply that the words "legitimate" and "genuine" do not reflect the content of s 100.1(3)(a) of the Code. The use of that language, it was contended, put a gloss upon the language of the legislation, in such a way as to exclude advocacy, protest, dissent or industrial action that might not be seen to be "legitimate" or "genuine".

Senior counsel acknowledged, when pressed, that the words "legitimate" and "genuine" each appeared only once in the oral directions; they do not appear in the written directions.

Those words appear in a short paragraph in which Whealy J referred to the intention of the Parliament, which was not, he said, to punish "legitimate acts of genuine protest", nor to punish the promotion of a lawful cause as though it were an act of terrorism.

Senior counsel then accepted that, far from being a ground about the fairness and balance of the summing up, Ground 3 is, in truth, a ground concerning the proper construction of the legislation.

We would be prepared to accept that there may in due course arise an issue about the construction of "advocacy, protest, dissent or industrial action" in sub-s (3)(a). However, this is not the case for that issue to be resolved. On no view could Whealy J's direction be taken to have stated or implied that "advocacy, protest, dissent or industrial action" had to be "legitimate" or "genuine" in order to have the protection of the exclusionary provisions of sub-s (3). The very short paragraph was a passing remark to draw to the jury's attention that the intention of Parliament was to create an offence of, and to punish, acts properly identifiable as acts of terrorism.

It may also be observed, as Whealy J observed to the jury, that it was no part of Elomar's case (or the case of any other appellant) that he had engaged in any activity that was properly to be seen as advocacy, protest, dissent or industrial action, but without any intention of causing harm or damage of the kind specified in sub-s (3)(b). Whealy J was persuaded to give the directions to the jury, although it seems that he did so with some reluctance. That was, as it appears from the transcript, because he considered that, in the way the trial had been conducted, no sub-s (3) issue arose. There was no evidentiary basis for the jury to consider whether, let alone conclude that, the activities of the appellants or the actions they contemplated (said to be preparatory to a terrorist act or acts) were advocacy, protest, dissent or industrial action. Nor was there any evidentiary basis for the jury to consider whether any such activities were undertaken but without an intention to cause such harm or damage. The evidence of the Crown pointed to the contrary conclusion.

Whether the ground is to be formulated as an error of law, or the fairness and balance of the summing up, in our opinion, it must fail. We reject Ground 3 of Elomar's appeal.

Counsel for Elomar took the course of arguing, both orally and in writing, Grounds 3 and 4 together. That was because the challenge to the reasonableness of the verdict depended entirely upon what was said to be the flawed direction with respect to s 100.1(3) of the Code.

As that ground of appeal fails, so also must Ground 4.

Although Ground 1 is not framed in the common form in which a verdict is asserted to be unreasonable and not supported by the evidence, the principles applicable to such a ground are equally applicable to the specific manner in which this ground is pleaded.

Those principles are well established. In Chamberlain v The Queen [No 2] [1984] HCA 7; 153 CLR 521 Gibbs CJ and Mason J adopted from Whitehorn v The Queen [1983] HCA 42; 152 CLR 657 the following: "... the question which an appellate court has to decide when called on to consider whether a verdict ought to be set aside because it would be unsafe, unjust or dangerous to allow it to stand is 'whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'." Their Honours held that: "To say that the Court of Criminal Appeal thinks that it was unsafe or dangerous to convict, is another way of saying that the Court of Criminal Appeal thinks that a reasonable jury should have entertained such a doubt. The function which the Court of Appeal performs in making an independent assessment of the evidence is performed for the purpose of deciding that question. The responsibility of deciding upon the verdict, whether of conviction or acquittal, lies with the jury and we can see no justification, in the absence of express statutory provisions leading to a different result, for an appellate tribunal to usurp the function of the jury and disturb a verdict of conviction simply because it disagrees with the jury's conclusion. We do agree that in many cases the distinction will be of no practical consequence; it will be merely a matter of words. That will not generally be the case where questions of credibility are decisive. However, whether it matters from a practical point of view or not in a particular case, it is not unimportant to observe the distinction - the trial is by jury, and (absent other sources of error) the jury's verdict should not be interfered with unless the Court of Criminal Appeal concludes that a reasonable jury ought to have had a reasonable doubt."

The High Court returned to the question in M v The Queen [1994] HCA 63; 181 CLR 487, in a passage that has been widely quoted. Mason CJ, Deane, Dawson and Toohey JJ said: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (internal references to Whitehorn and Chamberlain [No 2] omitted)

In SKA v The Queen [2011] HCA 13; 243 CLR 400 the High Court said: "21 To determine satisfactorily the applicant's appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged ... 22 On appeal, the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported." In that case, the High Court considered that this Court had failed to make an independent assessment with respect to a specific factual aspect of the Crown case.

With those principles in mind, we turn to the ground as pleaded on behalf of Khaled Cheikho. The terms in which the ground is framed are important. The ground is confined to two propositions: (a) that the evidence was not capable of establishing that Khaled Cheikho was a party to the conspiracy alleged; (b) that the Crown was unable to exclude the reasonable possibility that more than one conspiracy existed during the period specified in the indictment.

As indicated above at [60]-[151] there was a vast amount of material to establish that a conspiracy of the kind alleged by the Crown existed. That there was such a conspiracy does not appear, for the purpose of this aspect of the ground, to be in issue. The question posed for consideration by the first part of this ground of appeal is whether the evidence was capable of establishing that Khaled Cheikho was party to such a conspiracy. That calls for examination of the evidence directly relevant to his alleged participation. That, also, was of considerable volume. We will refer to it as briefly as is sufficient to identify the Crown case.

There was evidence that Khaled Cheikho was in possession, in hard copy or electronically, of "extremist" and "instructional" material. By way of example, he had a document entitled "Fundamental Concepts regarding Al-Jihad", which contained, inter alia, a section headed: "And Allah, Majestic is His Stature, Commands the Believers in the Legislation, to Repel the Disbelievers Who Were Empowered Over the Believers Decree"; another headed: "And the Military Training is Obligatory Upon Every Muslim"; a third headed: "And Nothing Prevents the Muslims from Jihad Except for Inability. And the Preparation Becomes Obligatory at That Point."

Two other documents in his possession were entitled "Defence of Muslim Lands". One of these was the document (referred to above at [83]) that identified two types of Jihad, offensive and defensive. Another document was entitled "Jihad: The Forgotten Obligation"; and there were two having the title "The Book of Jihad".

Khaled Cheikho was also found to be in possession of "martyrdom documents", for example "Verdict Regarding the Permissibility of Martyrdom Operations", and "Martyrs: The Building Blocks of Nations", and "The Virtues of Martyrdom".

He had other documents concerning insurgencies in Afghanistan and other places. Importantly, he had a document called "The Terrorist's Handbook", and another "Introduction to Explosives". Indeed, Khaled Cheikho was in possession of at least some documents falling into all of the categories outlined above at [79]-[107].

There was evidence that (like the other alleged co-conspirators) Khaled Cheikho operated a mobile telephone registered in a false name (Tom Clincley) and that, at times, he communicated with his alleged co-conspirators in code. In particular, the evidence showed that he and Elomar communicated by text messages in a way that was designed to suggest a romantic association between them. Towards the closing stages of the conspiracy (when the appellants clearly were aware of police interest in their activities) Khaled Cheikho text messaged Elomar, saying: "... the rains are coming down hard tonight its clearing up soon hopefully", a message the Crown contended was a coded reference to police investigations.

There was evidence that suggested that Khaled Cheikho had an interest in weaponry, with particular reference to AK-47 assault rifles.

There was also evidence, referred to in relation to Grounds 2 and 3 of his appeal, concerning his alleged involvement with Touma in the acquisition of large quantities of ammunition. The Crown particularly relied upon an intercepted call made by Touma to Khaled Cheikho when a van containing ammunition was searched by police and the ammunition seized. Touma told Khaled Cheikho to "come quick".

The evidence showed that Khaled Cheikho attended both "bonding camps", at Curranyalpa and Mulga Creek in March and April 2005. Other alleged co-conspirators, and members of the Melbourne group were also present. Subsequent examination of the camp sites showed that firearms had been discharged.

The evidence showed that Khaled Cheikho was present at a "Big W" store in Chullora when Sharrouf attempted to steal six digital alarm clocks and at least 132 batteries - all items that could be used in the manufacture of explosive devices. There was other evidence that Khaled Cheikho was present at another store with Hasan and Jamal when enquiries were made about the purchase of wireless closed circuit television security cameras with night vision capabilities. There was evidence that he, with Moustafa Cheikho, attended at another establishment ("the Miners' Den") and hired a metal detector. This evidence had to be seen in the light of evidence that ammunition and firearms could be concealed in PVC pipes and buried. There was also evidence of other items found at his home that could have been associated with the manufacture of explosives. Other items found at his home were documents and books relating to electrical circuits and circuit diagrams; electronic circuit boards, plastic wrapping, and a photocopy of a publication entitled "The Layman's Guide to Electronic Eavesdropping: How it's done and simple ways to prevent it".

There was evidence of association between Khaled Cheikho and the other alleged co-conspirators, increasingly in November 2005, at a time when surveillance and police activity were becoming more intense.

Finally, there was direct evidence of Khaled Cheikho's fundamentalist Islamic beliefs and hostility to the western world. In one conversation with Moustafa Cheikho the two discussed the then (or former) American Secretary of State, Condoleezza Rice. It was said that she was in hospital. Moustafa Cheikho said: "Good, God willing they all die. God willing they don't man, God willing they'll die from the Mujahadeen. Just like that grab every single one of them, just like that they're killed Zarquawi style." To which Khaled Cheikho replied: "Yes yes yes, slaughtered - slaughter style is better."

On his arrest, in the early hours of 8 November 2005, Khaled Cheikho said: "Did Howard ever tell you this, did that little cock sucking mother fucker tell you this. Tell him from me, tell him, tell him the guy that you raided at 2 o'clock told you to get fucked. Tell him I told you to ... told you to go and get fucked Howard you motherfucker. Tell him I swear by Allah you fear me not, you have put no fear in my heart, no fear with all thanks to Allah ... destroy the wrongdoers. The annihilator of the tyrants and of the infidels. This is who we worship, who do you worship, Howard and the legislations. Your democracy full of hypocrisy is that? We worship Allah Sharia law is gonna prevail throughout this land, it's gonna be ruled by it, you tell Howard this, tell him, Islam is gonna rule this land. Sharia law, Sharia law you poofter, Sharia law, go and learn about it because you're gonna be ruled by it, this is a promise by Allah. The Prophets ... promised us ... said the land, all the lands, all the lands, is Allah's land, Allah created it and he's given it to the Muslims and the Muslims are gonna rule in it. By Allah's law, the one and only law that's worthy, worthy of ruling mankind, no democracy rubbish. Full of shit. So you tell Howard this and pass it on to Bush the motherfucker. Tell him Abu Mosayed is gonna come and chop him up."

Having regard to the written submissions filed on behalf of Khaled Cheikho in respect to this ground, it is appropriate to note three specific items of evidence. Among the items found in the execution of the search warrant at his house were two large camouflage fabric sheets, one in a child's bedroom, and one in the main bedroom. There was also evidence of his access to and use of, or interest in, glycerine. He had in his possession an elementary book on physics which explained electrical terminology and components.

The strategy adopted on behalf of Khaled Cheikho in relation to this ground of appeal was to dissect the Crown case bit by bit, item of evidence by item of evidence, and point out (correctly) that none of these items of evidence alone could establish his participation in the conspiracy. The submissions focussed on individual items of evidence in isolation from all other items of evidence. For example, with respect to the elementary physics text it was said: "35 ... There is simply no basis for drawing any connection between such a 'very basic' book and any intention to prepare for the commission of a terrorist act or acts."

In relation to the camouflage fabric sheets, it was submitted: "40 Apparently, the [PVC] pipes were necessary so that the materials [guns and ammunition] could be buried, and hence there was also a need to hire a metal detector, which would enable the items to be recovered once buried. In those circumstances, it is difficult to imagine what possible terrorist purpose the camouflage sheets could have served. The items were found in the appellant's son's bedroom, and it is submitted that whatever use to which they were being put was related to the appellant's son, and not a terrorist purpose."

In relation to the glycerine, it was pointed out that glycerine has a variety of uses and it was submitted: "46 In all the circumstances, it could not be said that the mere use of the word 'glycerine' by the appellant could be used to draw an inference that the appellant participated in the conspiracy alleged. It would simply be far too speculative to so conclude based on the use of that single word."

There are many other examples of this approach. In relation to a text message, it was submitted: "49 To suggest that one message, enquiring of the appellant whether he had any silver tape left, was demonstrative of the appellant's active participation in concealment activities, was well beyond any submission, which the evidence might have permitted."

In relation to the conversation with Moustafa Cheikho concerning the slaughter of people such as Condoleezza Rice, it was submitted: "53 The political opinions of the appellant, no matter how fervently expressed, could not, by themselves, establish the appellant's participation in the alleged conspiracy. Motive alone is an insufficient basis to establish guilt beyond reasonable doubt ..."

In relation to the possession of extremist material, it was submitted: "55 ... the mere possession of material, which expresses a particular point of view, does not, ipso facto, lead to the conclusion that that person actually held the views, let alone that he would be motivated to act upon such views." That submission was reiterated with respect to what was called Khaled Cheikho's "outburst" at the time of his arrest.

Each of these propositions is perfectly correct. But it was never the Crown case that any item of evidence of itself (or "ipso facto") proved Khaled Cheikho's participation in the conspiracy. Any item of evidence may gain strength from any other item or items of evidence. The submission ignores the fundamental nature of a case based on circumstantial evidence. That point was precisely made in Chamberlain by Gibbs CJ and Mason J, who said: "Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together' ..." and, later in the judgment: "None of these facts, regarded in isolation, would have entitled the jury to infer that Azaria had been murdered or that Mrs. Chamberlain was responsible for the murder. When the evidence of all these matters is considered together, however, its probative force is greatly increased ..."

There was, in this case, ample evidence on which the jury could find that there was a conspiracy of the kind alleged by the Crown and that Khaled Cheikho was a participant in it.

Included in the submissions were from time to time attacks upon the submissions made by the Crown to the jury in final address. These were characterised as "untenable" or "tenuous". If it were considered that the Crown made submissions to the jury that could not be supported by the evidence, the time to make that complaint was at a suitable break in the proceedings. Unsustainable submissions (if made) by a Crown prosecutor do not go to the adequacy of the evidence to support the charge. However, the submissions do not persuade us that the Crown prosecutor's submissions to the jury could be characterised as "tenuous" or "untenable". Of course, some were more powerful than others. But (as can be inferred from the absence of any complaint at the time) none was so lacking in force as to warrant the description "untenable" or "tenuous".

We have examined the evidence. We are amply satisfied that it was open to the jury to convict the appellant as a participant in the conspiracy. The evidence satisfies us, to the requisite standard, that he was a participant.

The final submission put on behalf of Khaled Cheikho was that the Crown was unable to exclude the possibility of multiple conspiracies. This, it was said, was because of the Crown's inability to identify any particular act of terrorism that was the subject of the agreement alleged. While it was acknowledged that, by reason of s 101.6(2)(b) of the Code, it is not necessary for the Crown to identify such a specific act, counsel relied on that inability as: "demonstrat[ing] the difficulty of alleging, ... a single, common conspiracy."

It was argued that the case made by the Crown allowed for the possibility that various participants in the conspiracy had different "ultimate goals" from other members of the conspiracy, leaving open the possibility of the existence of more than one conspiracy. Reference was made to the decision of the High Court in Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317, in which Deane J said: "The jury cannot, however, find two conspiracies under a count which charges one only nor find an accused guilty of a conspiracy which is a distinct and different conspiracy to that which the count alleges (R v Ongley [(1940) 57 WN (NSW) 116]). In particular, where a single conspiracy has been charged, it is not open to the jury to find the accused guilty of a consequential but different conspiracy which flowed from that which is the subject of the actual charge."

Gerakiteys was a case which, on its facts, was fundamentally different from the present case. What the Crown there alleged was that nine individuals conspired with Gerakiteys (a psychiatrist) and another person to defraud various insurance companies, for the benefit of the nine individuals. The High Court held that there was no evidence that the nine had been jointly involved with another. Instead, what the Crown sought to establish was that each of the nine had entered into separate conspiracies with Gerakiteys and the other person. It was possible that each of the nine had engaged in a different conspiracy. There is no basis in the present case for such a finding.

In our opinion, Gerakiteys affords no assistance to Khaled Cheikho on this ground of appeal.

The argument addressed appears to be a re-working, or a variation, of an argument that was initially put before Whealy J and is the subject of his decision in Baladjam [No 4] (see above at [480]). At that time, it was characterised as a "duplicity" argument. The argument was rejected by Whealy J. An application for leave to appeal to this Court was refused: R v B.

The evidence here was clearly capable of establishing that the various alleged co-conspirators shared a common goal; the common goal was that a (yet unspecified) terrorist act (or acts) would be committed. It is not to the point that they had not, or the Crown could not prove that they had, finalised with precision what that terrorist act or those terrorist acts would be, or who should be the actual perpetrator or perpetrators. What was alleged was plainly a single conspiracy.

For that reason, the second basis on which Khaled Cheikho argued that the verdict was unreasonable and cannot be supported by the evidence should fail. It follows that we reject Ground 1 of Khaled Cheikho's appeal.

No ground of appeal has been made out. Each appeal against conviction should be dismissed. THE APPEALS AGAINST SENTENCE

Following the jury verdicts, sentencing proceedings took place over five days in December 2009 and the trial judge, Whealy J, imposed sentences on the appellants on 15 February 2010.

When passing sentence, the methodology used by Whealy J was to set out the factual background to the offences and to make factual findings which applied to all of the appellants. He then made specific findings in relation to each of them. It is convenient to follow the same approach in these applications for leave to appeal against sentence. Accordingly, the generic findings of Whealy J are set out before considering his specific findings as to each appellant and the grounds of appeal on which each appellant relies.

The jury's verdict of guilty against each appellant meant that it had been satisfied beyond reasonable doubt that a conspiracy to do acts in preparation for a terrorist act was in existence at the relevant time. Further, it must have been satisfied beyond reasonable doubt that each appellant was a willing participant in that agreement. Further, the verdict necessarily meant that the jury was satisfied that each appellant intended that acts would be undertaken in preparation for an action or threat of action to be carried out or threatened in Australia involving either or both the detonation of one or more explosive devices, or the use of firearms.

The jury must have been satisfied to the requisite degree that the action or threat of action would itself carry the intention or object of advancing the cause of violent jihad so as to coerce or influence by intimidation the Australian Government to alter or abandon its policies of support for the United States and other western powers in Middle Eastern and other areas involving Muslims. Finally, the jury must have been satisfied that each appellant must have intended that the acts in preparation would be for an action or threat of action which, if carried out, would have caused at the very least, serious damage to property and would have carried the further risk of physical harm to members of the public, danger to the lives of the public or a section of the public, and the creation of a serious risk to the health or safety of the public or a section of it. Each of these intentions was necessarily established beyond reasonable doubt to the satisfaction of the jury. That is to be recognised in the jury verdict of guilty against each appellant.

Whealy J noted that as well as the particular act or acts of each appellant, the criminality of an offender in a conspiracy case went well beyond the mere recognition of his or her actions and role in the enterprise. He noted that the gravamen of the offence - the essential feature - was the agreement to participate in organised criminal activity. He noted that the sentence must reflect the organisational nature of the conspiracy rather than by confining the sentencing discretion to the identification of the role of the particular offender with specific reference to his or her physical acts. Whealy J concluded that as a consequence, it was necessary to examine the nature and scope of the conspiracy and to assess on a basis, generally common to all the participants, the level of criminality exhibited by the conspiracy itself. Whealy J found beyond reasonable doubt that the conspiracy was certainly on foot by January/February 2005 and that it continued until the time of the arrest of the appellants on 8 November 2005.

In his sentencing judgment, Whealy J then made findings as to the nature and scope of the conspiracy. Those findings are set out in considerable detail in his Honour's judgment (RoS), which should be read with this judgment. A summary of those findings is now set out.

Whealy J found that between January and 26 May 2005, Elomar ordered and acquired 10,000 rounds of 7.62 x .39mm ammunition to be used in connection with the conspiracy. He had also acquired 12 different types of firearms, including rifles and pistols, which were all licensed. His Honour found that the ammunition was to be used in automatic or semi-automatic weaponry yet to be acquired. His Honour found that between April and June 2005, Touma acquired 7,500 rounds of 7.62 x .39mm ammunition, which was in due course seized by the police. Whealy J was satisfied that Khaled Cheikho was aware and complicit in the obtaining by Touma of those 7,500 rounds of ammunition. His Honour was satisfied that the acquisition and delivery of the ammunition was to be for the purpose of the conspiracy. His Honour found that Baladjam made inquiries in the second half of 2005 concerning the possible acquisition of substantial quantities of 7.62 x .39mm ammunition.

Whealy J made findings of attempts by some of the appellants, and persons associated with them, to obtain laboratory equipment and chemicals that might be used in the manufacture of an explosive device or devices. The Melbourne evidence was relevant to this part of the conspiracy. During a visit by Hasan and Sharrouf to Benbrika in Melbourne on 23 February 2005 there was mention of items of laboratory equipment contained in the Haines catalogue caught on a listening device. In a further visit by Elomar, Hasan and Sharrouf to Benbrika in Melbourne on 4 May 2005, there was a lengthy discussion concerning the ordering of laboratory equipment listed in the Haines catalogue. In June 2005, laboratory equipment was ordered from Haines which was connected to a telephone service located at Hasan's premises on 27June 2005. The transaction with Haines was never completed and the equipment was not collected. His Honour found that Joud (an associate of Benbrika) had placed the order and that it was done with the help and approval of Hasan and Elomar.

A search of Aimen's home in June 2005 produced a handwritten document, listing items of laboratory equipment compiled from the Haines catalogue, which generally corresponded with the items mentioned in the discussions which had previously occurred between Hasan, Elomar, Sharrouf, Joud and Benbrika as to what items were to be ordered and the quantities of those items. The document was in the handwriting of Elomar and Hasan's and Joud's fingerprints were found on it. Whealy J noted that when the search warrant was executed at Elomar's home, which resulted in the seizing of firearms and ammunition, computer discs were found which contained instructions for the manufacture of explosives and the manufacture and detonation of various improvised explosives. They included step by step instructions on how to manufacture explosives such as TATP and HMTD, with details and advice as to how to source the ingredients for the explosives, and how to extract and prepare them for use.

In July 2005, one Khalid Vetter and another man (alleged by the Crown to be Hasan) were involved in the purchase of a reasonably substantial quantity of laboratory equipment. Whealy J was satisfied that the Melbourne attempts to obtain an extensive range of laboratory equipment were attempts to obtain equipment for the making of explosive devices. His Honour found that even if it were not Hasan who went with Vetter to purchase laboratory equipment, the equipment purchased was to be used, at least in part, for the purposes of the conspiracy.

Two camping trips occurred in remote parts of New South Wales on 16 - 18 March 2005 and 12 - 14 April 2005. Both bookings were made in a false name. Hasan, Khaled Cheikho, Sharrouf and three of the Melbourne men attended the first camp. Elomar, his son, Hasan, Khaled Cheikho, Moustafa Cheikho and Touma attended the second camp. There was some shooting at each camp. These camps were labelled by the Crown as "bonding trips" but because of their location, no surveillance could be carried out.

Whealy J found that between 28 September 2005 and 5 November 2005, Hasan and, to a lesser extent, Jamal, were involved in the ordering of chemicals. In doing so they used false names and paid in cash. The chemicals ordered were battery acid, distilled water, acetone, sulphuric acid and methylated spirits. After 13 October 2005, Jamal had no further connection with the ordering or collection of chemicals but Hasan continued with his endeavours to purchase chemicals.

During the week of 17 October 2005 Hasan attended Padstow Station Hardware and inquired about placing an order for methylated spirits and acetone. He used a false name and provided a phone number which was in a false name. He paid a cash deposit. On 22 October 2005 Hasan collected 16 litres of acetone from Peters Hardware. On 1 November 2005 Hasan returned to Padstow Station Hardware and paid $670 for a chemical order (acid/acetone) and made arrangements to collect it on 5 November 2005.

Hasan attended Padstow Station Hardware on 5 November 2005. Surveillance of his movements around the store showed him to be nervous or suspicious and he left without collecting the order. The car which he was driving on that occasion was a Musso FDT-113.

Whealy J found that this car (which had not hitherto been detected by surveillance) was deliberately used by Hasan to escape surveillance. Two days after his arrest, the vehicle was found abandoned. The following items were found in the car: a number of containers of "Refresh" brand distilled water, a 5 litre container of hydrogen peroxide, two shovels, two mattocks, a rake and four very detailed topographic maps, covering a relatively remote part of the Blue Mountains. There was also found an Esky and a book entitled "Fortress of the Muslim" on which were located Jamal's fingerprints. There was also a map with Jamal's fingerprints on it.

A second Musso vehicle (ATE-40N) was found abandoned on 8 February 2006. It had been in the location for some time. There were items in that vehicle which were linked to a number of the conspirators. There were items that demonstrated that the vehicle had been used for camping or other related purposes. Whealy J found that like the other Musso, it had been used in connection with some type of concealment activity in rural areas.

Between July 2005 and 8 November 2005, the activities of Baladjam increased markedly and another man, Mulahalilovic, came into the picture. Mulahalilovic purchased 7.62mm ammunition and Baladjam purchased quantities of hydrogen peroxide. Baladjam made enquiries about the delivery of chemicals that had been ordered by Hasan. He and Mulahalilovic bought tape and PVC end caps, as did his wife. On 3 November 2005 Elomar, Moustafa Cheikho and Sharrouf purchased tape and Sabco containers from Bunnings. Later that day Elomar purchased five containers from a hardware store and Mulahalilovic purchased a 6 metre PVC pipe. Whealy J found that these and other transactions in early November were preliminary steps in an operation to conceal and keep from detection items or materials collected in connection with the conspiracy.

Whealy J noted that before November, police had seized 24 x 400 ml bottles of hydrogen peroxide, which had been discovered by accident behind Sharrouf's house. It was not clear whether he or Moustafa Cheikho had purchased these chemicals. At some time after 19 August 2005, the USB stick, which had been seized from Elomar's home, was returned to him. On that day the "Illustrated Encyclopaedia" was deleted from the memory stick. This item contained instructions in Arabic for the manufacture of explosives. Other material, of an innocent kind, was not deleted.

Between 22 August 2005 and 28 September 2005, a number of telephone services were activated in false names. Elomar and Khaled Cheikho spoke to each other using these services. The messages were in code and were designed to arrange meetings. The coding took the form of messages from fictitious persons, usually arranging a date or discussing going to a nightclub etc. Overall, the series of messages were designed to arrange meetings to facilitate transactions and to arrange finance when necessary. Whealy J found that the codes were designed to lull an unaware observer into thinking the arrangements were purely social interactions of an innocent kind between sweethearts or friends.

In relation to those activities, Whealy J said in RoS: "37 The above material represents a very condensed version of the facts relied on by the Crown in support of the proof of its case as to the scope and nature of the conspiracy. There were many other facts and items which I have not troubled to either identify or summarise. There was, for example, a very considerable body of surveillance evidence. The principal effect of this evidence was to show a very close association between the offenders over a considerable period of time. The second area I have not endeavoured to summarise was the listening device and the telephone intercept material. It was, as might be expected, voluminous. Once again it shows the very close association between the men. It also portrays, on occasions, very extremist views being expressed by some of them. I will however endeavour, as best I can, to summarise briefly the instructional and extremist material found at the home of the offenders, including material in disc form or on the hard drive of their computers. This material is important for an understanding of the state of mind of the offenders and, particularly, the states of mind which supported their individual actions in furtherance of the conspiracy. It also gives a particularly compelling insight into the nature and scope of the conspiracy."

In reviewing this material, Whealy J noted that the information found on the USB flash drive at Elomar's home contained recipes for the making of explosives using nitro-glycerine, hexamine, hydrogen peroxide, acetone and sulphuric acid. There were instructions and recipes for making other explosives. Other material found at Elomar's home focused on sabotage, kidnapping, counter-surveillance and assassination. His Honour noted that the material accessed on Khaled Cheikho's computer included ways in which battery acid might be obtained and used for explosives and recipes for combining battery acid, hydrogen peroxide and acetone to form a dangerous explosive. It included a booklet which contained a considerable range of working and workable recipes for explosives made from other chemicals. Khaled Cheikho had at his home instructional and educational articles in relation to basic electronics and Kalashnikov weaponry. This was the type of weapon which might be used to fire 7.62mm ammunition. Whealy J noted that Moustafa Cheikho had on his computer a document which set out how to make a bomb which could be activated by using a mobile telephone.

In summary, Whealy J said: "42 Each of the offenders had, either on his computer or in disc form, instructional material in the nature of military handbooks. For example, electronic copies of the 'Sniper Handbook' were found on computers and/or media seized from the premises of each of the offenders. (Similar electronic copies were also found at the premises of Baladjam, Sharrouf and Touma). There was also survival planning and survival kits found in electronic form at the homes of each of the offenders. Each of Hasan and Moustafa Cheikho had at their homes editions of a book by John Lofty Wiseman entitled 'SAS Survival Handbook'."

Whealy J summarised his findings as follows: "43 Each offender had at his home, in one form or another, a vast quantity of extremist or fundamentalist material. Some of this was in hard copy form but the bulk of it was in electronic form, either on hard drive or discs or both. One particular feature of this trial was the fact that a considerable volume of extremist material was held by each offender in common with the other conspirators. This was referred to throughout the trial as 'the commonality material'. It was analysed in considerable detail and there was no dispute about the commonality aspect. The offender Hasan gave evidence that the CDs and other material he had at his home or which were copied on to his computer were simply unsolicited handouts made at the Prayer Hall or Mosque. I reject that evidence completely. It is clear to me that the common holding of this vast body of material among the offenders and their close associates is powerful evidence of the sharing amongst them of material which reflected their jointly held extremist views. They may not have read, viewed or digested every article or image, but generally they would have been aware of or appreciated the overall nature of the material."

Included in this material were DVDs and CDs showing the execution of hostages or prisoners by Mujahideen. Whealy J said: "48 ... These were particularly brutal, distressing and graphic. It is impossible to imagine that any civilised person could watch these videos. So disturbing were they that none of the executions was shown to the jury. The preliminaries to the execution of a Korean prisoner in one video were shown but without audio content. That was the extent of it. Otherwise the jury were simply given a written description of the videos and their contents. These videos were common to a number of the offenders, although it is clear Jamal did not view the one execution video found at his home. The documents in the 'extract' DVD included, for example, interviews with Osama bin Laden and numerous articles justifying, over and over again, the pursuit of jihad towards 'disbelievers'." ([48] RoS)

Whealy J assessed the objective seriousness of the offending and said: "56 The objective seriousness of the offence committed by each offender is primarily to be gathered by reference to the criminality of the enterprise upon which they were each engaged. Consistently with the jury's verdict I find that each offender was completely committed to the outcomes of the enterprise to do acts in preparation for a terrorist act or acts. I find that the notions willingly and fully embraced by each individual offender, and shared jointly between them, included the following: First, each was driven by the concept that the world was, in essence, divided between those who adhered strictly and fundamentally to a rigid concept of the Muslim faith, indeed, a medieval view of it, and to those who did not. Secondly, each was driven by the conviction that Islam throughout the world was under attack, particularly at the hands of the United States and its allies. In this context, Australia was plainly included. Thirdly, each offender was convinced that his obligation as a devout Muslim was to come to the defence of Islam and other Muslims overseas. Fourthly, it was the duty of each individual offender, indeed a religious obligation, to respond to the worldwide situation by preparing for violent jihad in this country, here in Australia. 57 The task required by the criminal enterprise was to equip the conspirators individually and jointly, with the knowledge, the ability and the means to prepare for or to enable a terrorist act or acts to be carried out in Australia. The intended purpose of that act or those acts would be to instil terror and panic in the Australian community, and thereby to force the Australian Government to change its alliances and policies overseas. The terrorist act or acts contemplated involved the detonation of one or more explosive devices, or the use of firearms, or both. It was plainly intended that this act or those actions would be of a major kind and that they would be effective to secure the objects of the enterprise. 58 Now, it is true that the evidence does not establish that any firm conclusion had been reached as to matters such as the precise nature of the action which was to be carried out, or its target or targets. Moreover, the evidence does not establish who would actually prepare the bomb or bombs in its or their final form. Nor does it establish who would detonate the explosive or explosives or in what circumstances that would occur. The prompt action by the authorities meant that the enterprise was interrupted at a relatively early stage of its implementation. 59 It is accepted by counsel for each offender that the act constituting the offence was the intentional act of each offender in entering into the agreement to participate in the planned terrorist activity. In those circumstances, it is proper to approach consideration of the sentencing process by having regard, so far as one can, to what would have happened had the intended terrorist act or acts actually occurred, in the light of the intentions of each offender. In this case, the nature of the contemplated terrorist act or acts can be seen from the type and variety of materials collected or sought to be collected. The intentions of the individual offenders can be gleaned from their words and conduct and from the extremist and instructional material held by them or shared between them. The objects of the conspiracy, as a whole, can be plainly understood from the whole of the material and events I have earlier summarised. 60 A consideration of those matters satisfies me beyond reasonable doubt that each offender intended that the terrorist act or acts, for which preparation was being undertaken, would involve action that, at the very least, was intended to cause serious damage to property. Such act or acts, involving the use of assault ammunition and explosives, would be highly likely to endanger the life of members of the community and, at the very least, create a very serious risk to the health and safety of members of the public. While I cannot be satisfied beyond reasonable doubt that any of the offenders intended directly to kill or take human life, it is clear beyond argument that the fanaticism and extremist position taken by each offender countenanced the possibility of loss of life, if that were to occur. The offenders' collective disdain for the Australian Government and their intolerant animosity towards members of the community who were not of a like mind to themselves made such an attitude inevitable, even if the proposed act or action were limited to an explosion or explosions directly intended to cause serious damage to property. There is not the slightest justification for thinking that the contemplated act or action might have been limited to the setting off of an explosion in some isolated rural area. Each conspirator intended that the ultimate act or terrorist act was to be an effective one, one that would make a significant difference to the Government and the community. It would also be a meaningful expression of their own anger and frustration, as they saw it, directed towards the Australian people's unfair attitude to Muslims. 61 An examination of the individual acts carried out by each of the offenders in furtherance of the conspiracy shows that each of those acts was necessarily central to, and important for the purpose, of the fulfilment of the agreement to which each offender was a party. Each offender unequivocally and voluntarily adhered to the objects of the criminal enterprise. Each offender carried out his tasks in that regard resolutely and in complete defiance of the authorities. The Crown submitted that this was evident from the increase in activity on the part of the offenders following the execution of search warrants in mid-2005, and the further increase in such activities (particularly activities relating to concealment of items) in the latter part of 2005, at or about the time of the passing of relevant amendments to the Anti-Terrorism legislation. As I have said, copies of that legislation were found on the computer of Khaled Cheikho and also on the computers of Moustafa Cheikho and Hasan. Other persons involved in the enterprise expressed, in this latter phase, a fear that their homes would soon be raided, as indeed, they were. 62 It is necessary to add into this complex mix the large quantity of extremist material in the possession of each offender. It is fair to see this as a reflection of each offender's ideology, his inspiration and motivation in the pursuit of the extremist cause of violent jihad. Mr Dalton SC [who represented Elomar] submitted before the jury that a person is not what he reads. That is true, in general terms, but here the sheer volume of extremist material, and the particular fact that it was held in commonality among the offenders, is very telling as to the existence of a shared mindset. 63 The mindset evinced by all this material may be summarised as follows: First, a hatred of the 'KUFR', that is those Muslims and non-Muslims who did not share their extremist views. Secondly, an intolerance towards the democratic Australian Government and its policies. Thirdly, a conviction that Muslims are obligated by their religion to pursue violent jihad for the purposes of overthrowing liberal democratic societies and to replace them with Islamic rule and Sharia law. This criminal enterprise was not in any sense motivated, as criminal activities so often are, by a need for financial gain or simply private revenge. Rather, an intolerant and inflexible fundamentalist religious conviction was the principal motivation for the commission of the offence. This is the most startling and intransigent feature of the crime. It sets it apart from other criminal enterprises motivated by financial gain, by passion, anger or revenge."

By reference to those matters, Whealy J concluded that the level of criminality involved in the conspiracy was far more substantial than the criminality involved in the individual acts of each appellant, such as might have warranted the bringing of individual substantive charges against each of them. His Honour took into account the following matters as adding to the level of criminality involved in the conspiracy:

Whealy J took into account as a further aggravating feature the concealment process shortly before the arrest of the appellants, in that it was done not merely to avoid detection, but to preserve the fruits of the criminal enterprise for later use. His Honour noted that the conspiracy existed over a long period of time.

Whealy J set out his conclusions as to objective seriousness as follows: "68 The criminal enterprise was carried out in a manner, which reflected considerable pre-meditation, determination and commitment. It is true that in some respects the attempts to obtain materials were sometimes amateurish and often lacking in cleverness. On occasions, they were inept and clumsy. Those factors did not make the conspiracy any the less dangerous. I accept the Crown's submission that the arrangements were relatively well advanced and were characterised by a clear and logical inevitability, namely that, but for the intervention of the authorities, such arrangements would have been put into effect sooner rather than later. In that sense, the conspiracy was advanced to such an extent that it could not be said its outcome was remote. More work needed to be done, of course, but there is no reason to doubt that, absent the intervention of the authorities, the plan might well have come to fruition in early 2006 or thereabouts. The materials were to hand and recipes for the construction of explosives were available. It certainly could not be said that the prospect of a terrorist act or acts was completely indeterminate as to when it would occur. The driving fanaticism behind the collective mindset of the conspiracy would have ensured that events moved quickly once sufficient material had been assembled, and the authorities' surveillance thwarted or at least diminished. 69 For all these reasons, I find that the criminality involved in the enterprise to which each man willingly participated was of the most serious kind falling only marginally short of the most serious case."

Whealy J took into account as a common factor shared by all of the appellants that they would likely remain "classified as AA inmates after sentencing". The practical consequence of the classification was that the appellants were more likely to be held in Lithgow Correctional Centre, Goulburn Correctional Centre or the High Risk Management Correctional Centre. His Honour accepted that the conditions of incarceration for a "AA" prisoner were onerous. His Honour set out in detail those onerous conditions.

Whealy J noted that the statutory guidepost for the exercise of the sentencing discretion was s 16A(1) of the Crimes Act 1914 (Cth). His Honour noted that as well as taking into account the matters set out in s 16A, it was also necessary to take into account general deterrence, even though it was not mentioned. In relation to sentencing for terrorist offences, His Honour took into account the importance of "punishment, deterrence, denunciation and incapacitation" (i.e., protection of the community). His Honour accepted that when passing sentence for the most serious terrorist offences, rehabilitation was likely to play a minor part (if any).

Whealy J said: "79 The broad purpose of the creation of offences of the kind involved in the present sentencing exercises is to prevent the emergence of circumstances which may render more likely the carrying out of a serious terrorist act. Obviously enough, it is also to punish those who contemplate action of the prohibited kind. Importantly, it is to denounce their activities and to incapacitate them so that the community will be protected from the horrific consequences contemplated by their mindset and their actions. The legislation is designed to bite early, long before the preparatory acts mature into circumstances of deadly or dangerous consequence for the community. The anti-terrorist legislation, relevantly for the present matter, is concerned with actions even where the terrorist act contemplated or threatened by an accused person has not come to fruition or fulfilment. Indeed, the legislation caters for prohibited activities connected with terrorism even where no target has been selected, or where no final decision has been made as to who will carry out the ultimate act of terrorism. The maximum penalty of life imprisonment testifies to the seriousness with which the present offence is to be regarded."

We turn now to deal with the individual applications.

Elomar was sentenced to imprisonment for 28 years with a non-parole period of 21 years. He sought leave to appeal against that sentence on the following ground: That the appellant has a legitimate sense of grievance when his sentence is compared to those of his co-offenders.

Elomar did not give evidence in the sentencing proceedings and no reports were tendered on his behalf. Information as to his subjective case was provided to the court without objection by his senior counsel. He came to Australia from Lebanon in 1977 and was aged 44 at the time of sentence. He attended school at Bankstown and left at the completion of Year 10. He completed a Metal Fabrication apprenticeship and for 15 years before sentencing, worked in a family business which involved structural steel on building sites. He came from a large family with 11 siblings who also reside in Australia. Most have their own businesses. He had been married for 22 years and had 6 children.

Whealy J noted that although he made no admissions in relation to jihadist activity when interviewed by the authorities, he displayed an overall attitude of anger and aggression. His Honour found that a further insight into his mindset was to be gained by an examination of the extremist and instructional material which he had at his home.

Whealy J found that Elomar played a central part in the furtherance of the conspiracy. His Honour found that he occupied a co-ordinating position in relation to most aspects of the enterprise. It was he who was responsible for ordering an extensive amount of assault rifle ammunition in 2005 and it was he who wrote out the handwritten list of laboratory equipment for the Haines order in May 2005. He co-ordinated Baladjam towards the end of the period of the conspiracy and participated in a coded system of communication with him and also with Khaled Cheikho. His Honour found that he was at the forefront of the concealment activities in October/November 2005 and that it was he who possessed the recipes for explosives to which his Honour referred in his overall summary.

Despite that important role, Whealy J was not prepared to find that Elomar was at the top of a hierarchy within the conspiracy. His Honour found: "89 In the present matter, while it is certainly true that Elomar was the most senior of the offenders, the fact is that each of the men was unequivocally committed to an outcome that was intended at the very least to cause serious damage to property and would have been very likely to cause devastation in the community, if not serious injury or death to civilians. ... 90 While it is undoubtedly true that Elomar was the most senior of the offenders, as I have said, and while it is undoubtedly true that he played a central role in the furtherance of the conspiracy, it may also be said that each man played a central role, even if the actions of some were more numerous than those of others. In my opinion, this means that, although there may be slight gradations of difference in the allocation of criminal responsibility, overall the level of criminality to be attributed to each offender is relatively similar. In the present matter, there is little utility in trying to establish with absolute precision a gradated hierarchy when the criminal liability of each man is at such a high level. That is because the level of criminality of the conspiracy itself to which each man was a willing adherent is, as I have said, not much less serious than the worst-case situation. That said, there can be no doubt whatsoever that Elomar was, throughout the conspiracy a co-ordinator of many aspects of the criminal enterprise. That situation, as will be seen, may be contrasted with the role played by others."

By way of mitigation, Whealy J noted that no target had been selected and no decision had been made as to the precise nature of the terrorist act or who would carry it out. He also took into account in his favour that Elomar had led a blameless life for a considerable number of years and had no criminal history whatsoever. His Honour took into account the difficult conditions of his custody both pre-trial and the likely conditions following upon conviction and sentence.

Despite those moderating features, Whealy J concluded that Elomar had not acknowledged any responsibility for his actions, nor had he exhibited any contrition or remorse in relation to the serious crime of which he was convicted. His Honour found little prospect of rehabilitation in that there was no indication that he would ever renounce the extremist views which fuelled his participation in the conspiracy.

Elomar submitted that in accordance with Whealy J's findings, there was no real difference between the senior conspirators, such as he and Khaled Cheikho, and accordingly there was no basis for his Honour making any distinction between them so as to impose a heavier sentence on him. Elomar submitted that he should have received the same sentence as Khaled Cheikho.

Elomar's submission should not be accepted. While Whealy J clearly indicated that there was little difference between the objective criminality of each of the appellants, he did not say that it was the same. His Honour described the level of criminality as "relatively similar" and subsequently qualified that finding by noting that Elomar, throughout the conspiracy, was a co-ordinator of many aspects of the criminal enterprise which was a point of distinction between him and others in the conspiracy.

Given that the difference in sentences between Elomar and Khaled Cheikho is so small, i.e. 1 year in the head sentence and 1 year in the non-parole period, there is no basis for Elomar having a justified sense of grievance given that Whealy J found some features which distinguished his role from that of Khaled Cheikho.

While both he and Khaled Cheikho had a co-ordinating role, his was more broadly based and included not only the acquisition of ammunition but also of laboratory equipment. He had maintained his defiance and anger up to and including when he was interviewed by the police. Specifically, Whealy J found that Elomar was the most senior of the conspirators. Albeit that the overall level of criminality between him and Khaled Cheikho was similar.

These considerations were sufficient to distinguish his position from that of Khaled Cheikho, but not to a significant extent, which was reflected in the relatively small difference between their sentences.

Leave to appeal should be granted but the appeal should be dismissed.

Khaled Cheikho was sentenced to imprisonment with a non-parole period of 20 years and 3 months and a balance of term of 6 years and 9 months. He seeks leave to appeal from that sentence on the following grounds: Ground 1: His Honour erred in finding beyond a reasonable doubt that the appellant was complicit in the acquisition by Touma of 7,500 rounds of ammunition seized by the police and further that the appellant was the co-ordinator of the acquisition. Ground 2: His Honour erred in finding that the text message communication between the appellant and Elomar were designed to facilitate transactions presumably in furtherance of the conspiracy. Ground 3: His Honour erred in finding that the Musso vehicles were used in connection with the concealment activities. Ground 4: His Honour erred in finding that the appellant was a co-ordinator of the conspiracy. Ground 5: His Honour erred in finding that the appellant was a member of the conspiracy in the entire period between February and November 2005. Ground 6: His Honour erred in finding the offence to be aggravated on the basis it was motivated by "intolerant and inflexible fundamentalist religious conviction" in circumstances where the motivation was already an element of the offence. Ground 7: His Honour erred in finding that the significance of the onerous nature of the custodial conditions in which the appellant is held diminished in light of the nature of the offence of which the appellant was convicted. Ground 8: His Honour sentenced on a basis of a perception of the nature of the custodial conditions which were subsequently proved to be inaccurate. Ground 9: The sentence imposed is manifestly excessive, particularly in light of his Honour's finding that (1) no conclusion had been reached as to the nature of the action which was to be carried out; (2) the enterprise was interrupted at a relatively early stage of its implementation and; (3) the action to be undertaken was intended to cause serious damage to property.

Khaled Cheikho did not give evidence in the sentencing proceedings. There was tendered on his behalf a report from Mr Watson-Munro, consultant forensic psychologist. The information in that report was based on an audio visual interview between the psychologist and Khaled Cheikho in December 2009 and a separate consultation between him and the appellant's brother, Adnan Cheikho. In the report Khaled Cheikho maintained his innocence in relation to the conviction, despite the verdict of the jury.

Whealy J reviewed Khaled Cheikho's subjective case. He was born in Lebanon in 1973 and was aged 36 years at the time of sentence. He had five brothers and five sisters. He was the youngest son and the second youngest member of the family. All his siblings reside in Australia. His family emigrated here when he was three. He attended Punchbowl Primary School and Bankstown Boys High School but left school at the end of Year 11. He told the psychologist that he experimented with "sex, drugs and rock'n'roll" until his 20s. In his early 20s he became disenchanted with this lifestyle and started to practise Islam. Since that time, he had been largely sustained by his Islamic faith. He told the psychologist that his faith had given him the strength to deal with his current situation as a convicted offender. His employment since he left school was sporadic. He was married with a child.

Khaled Cheikho told the psychologist that he had strong feelings of distrust towards the authorities, including ASIO and the Court system in general. He said "Courts are puppets for the regime... they are cronies of the Government". The psychologist reported that he might be suffering significantly at an emotional level while in custody because of the absence of his wife and child. At the time of sentence, they were living in Jordan, having relocated there in 2007.

Whealy J made the following findings as to the specific activities of Khaled Cheikho in relation to the furtherance of the conspiracy. His Honour said: "99 ... I am satisfied beyond reasonable doubt that the offender was aware of and complicit in the obtaining, pursuant to the conspiracy, by Touma of about 8,000 rounds of 7.62 x .39 ammunition suitable for use in assault rifles such as that known as an AK-47. The telephone calls between the two men prior to the hand over of the ammunition, and the call shortly after it was discovered by the police satisfy me, not only that Khaled Cheikho knew that Touma was acquiring the ammunition for the conspirators, but that the offender had a co-ordinating role in that regard. It is true that the actual conversations between the two men following the telephone calls are not in evidence. Indeed, there is no direct surveillance evidence to show that they in fact met. But the contents of the telephone conversations, their tone and the timing of them in connection with the seizure by the authorities of the ammunition, leave me in no doubt that Khaled Cheikho played the role I have earlier described. There were also the escalating number of calls between the two men between April and May 2005. This role could not, by any stretch of the imagination, be regarded as peripheral to the conspiracy or its execution. It was a central aspect of the collection of materials to be used in connection with a terrorist act or acts. The unexpected seizure of the ammunition was undoubtedly a major blow to the progress of the criminal enterprise. 100 I have already referred to the significant number of covert text messages passing between the false name phones operated by Elomar and Baladjam in the latter stages of the conspiracy. In these, Baladjam sought the permission of Elomar to include the man Mulahalilovic in meetings, as well as seeking money from Elomar. I am satisfied beyond reasonable doubt that, by the beginning of November 2005, there was a pressing need to hide materials that had been acquired. There was a fear that raids would be carried out by the authorities. I am also satisfied beyond reasonable doubt that Khaled Cheikho had a role to play in this important process for the purposes of preserving the criminal enterprise. Despite the close attention of the authorities, the enterprise was not to be abandoned. Rather, materials were to be stored or concealed for use at a later time. I have earlier referred to the fact that copies of the Anti-Terrorism Act 2005 were saved to the computers of Moustafa Cheikho, Khaled Cheikho and Hasan in about the middle of October 2005. There was widespread publicity at the time to the fact that these amendments were designed to widen the ambit of the legislation to include a preparatory terrorist act, even where no particular target had been selected. The situation was undoubtedly 'hotting up'. For example, Khaled Cheikho's false phone service contacted Elomar's service: - 'See ya soon sweetie the rain come down hard tonight, it's clearing up soon hopefully'. And on the next day, the following text message was sent at about 8.16pm: 'OK but were still waiting for a lift, it will have to be in a few hours. Just tell me what time is good for you'. And the next day: 'Hi babes, it's been a scorcher today. Did you see the news today for the weather forecast?' These were clearly not calls about the weather. On 3 November 2005 at approximately 1.16am, Khaled Cheikho texted Elomar: 'Did you get my message, darling?' And then: 'Where are you darling?' At about 3.31pm, Elomar text the following message to Khaled Cheikho: 'Hello darling, can you let me know if you still have some rolls of the silver tape? I need some for this afternoon. My credit is finished on my phone. Call me on this number'. (Later that afternoon, Elomar and others acquired silver tape and containers from Bunnings)."

Whealy J went on to make the following further findings: "102 ... I am satisfied beyond reasonable doubt that the two Musso vehicles were being used in this concealment process as is evidenced by the contents found in those vehicles. Various maps were found as well as spades, mattocks and a rake. A container of hydrogen peroxide was in the first vehicle. There was a good deal of camping equipment and maps in the second vehicle. 103 In the first vehicle there were two documents that had Jamal's fingerprints on them. These, it will be recalled, were 'The Fortress of the Muslim', and a Sydney UBD map. There was DNA of Baladjam located on the homemade fabric gun holster found in the same vehicle on 10 November 2005. DNA components of Omar Jamal were identified on the sleeping bag cover in the second Musso ATE-40N. This, it will be recalled, had been abandoned but was found later by the police in February 2006. Khaled Sharrouf's DNA was found on a Fanta bottle in the same vehicle. DNA of Hasan was found on a water bottle in that vehicle. Khaled Cheikho's DNA was identified on a Passiona bottle found in the same vehicle. There were various items in the second Musso that contained fingerprint material belonging to Hasan. There were items there consistent with an overnight stay in the bush. Significantly, for present purposes, the key to ATE-40N was found at Khaled Cheikho's home. Finally, it might be mentioned that Moustafa Cheikho's thumbprint was found on page 25 of the Sydney Morning Herald dated 5/6 November 2005. This newspaper was located in the Musso vehicle ATE-40N."

By way of mitigation, Whealy J took into account a number of the matters mentioned by him when dealing with Elomar. This was the first time Khaled Cheikho had come under adverse criminal notice and he had otherwise led a blameless life. His Honour took into account the conditions of custody, both during the last four years and for the future. His Honour did note, however, that little had been done by Khaled Chiekho's legal representatives to facilitate the smooth conduct of the trial. His Honour was prepared to make little, if any, allowance in Khaled Cheikho's favour to reflect his willingness to facilitate the course of justice.

In conclusion, Whealy J found: "106 Khaled Cheiko's criminality, like that of Elomar, is essentially defined by the ambit of the criminal enterprise into which he willingly entered. I have found that to be an enterprise of the most serious kind, falling not far short of the most serious case. Khaled Cheikho's role was central to the conspiracy and he was fiercely committed to its objects. He too, like Elomar, was a co-ordinator of aspects of the enterprise, although his role in that regard was not as extensive as Elomar's had been. An examination of the outburst he made at the time of his arrest shows his absolute contempt for the Australian Government and its laws. It shows his extremist conviction that Sharia Law should rule, even in this country. Those attitudes of distrust and defiance, so far as I can ascertain from the psychologist report, still inhabit his thinking. Khaled Cheikho has shown no remorse and no acceptance of responsibility. His prospects of rehabilitation are extremely poor. His extremist and fundamentalist convictions require his incapacitation for a considerable period of time so as to protect the community."

Khaled Cheikho submitted that his involvement in the acquisition by Touma of a considerable quantity of ammunition was not an indispensable fact for the purposes of the jury's deliberation. Accordingly, it could not be said that the jury's verdict implied that it was necessarily satisfied beyond reasonable doubt that he was so involved. This being so, he submitted that Whealy J needed to be independently satisfied upon the evidence adduced at trial on that issue.

He submitted that in the absence of any evidence as to he and Touma meeting, let alone any evidence of conversations concerning ammunition, Whealy J could not have been satisfied beyond reasonable doubt that he knew of Touma's activities, let alone that he participated in them.

This ground has not been made out. Implicit in Khaled Cheikho's submission is the proposition that unless there was direct evidence on the issue, an inference could not be drawn by Whealy J as to a link between Touma and him in relation to Touma's acquisition of ammunition. That inference can be drawn from the content of the telephone calls (including their timing and tone) which occurred between Khaled Cheikho and Touma on 2 and 3 June 2005 when the arrangements for the acquisition of the ammunition were being made.

It is not a matter of considering each telephone communication in isolation but it is necessary to take account of their context and the total effect of the calls. It also needs to be remembered that Khaled Cheikho, in particular, was aware of the likelihood that the police were interested in their activities and that is why a code was used, together with false names and telephone services using false names. It is also not without significance that shortly before the purchase of the ammunition, information was downloaded on Khaled Cheikho's computer relating to AK-47 assault rifles which would be suitable for using this ammunition.

Significantly, after the police had located and seized from the van 15 boxes of ammunition at approximately 1.30pm on 3 June 2005, there was considerable urgency in the communications between Touma and Khaled Cheikho, with Touma urging him to "come on quick". The conversations over these two days, in particular the urgency in that brief conversation after the ammunition had been seized by the police, allowed Whealy J to draw the inference that the conversation related to the ammunition.

It is clear from the telephone conversations between Touma and Lord (the intermediary whom he was using to acquire the ammunition) when discussing price, that Touma had to refer that matter to another person who could make a decision on that issue. Following that conversation, there was an intercepted call between Touma and Khaled Cheikho where a meeting was arranged. The following day (7 April 2005) Touma was able to confirm the price for the ammunition with Lord and to deliver that amount (i.e. $4,000) to Lord that night. During the interim, Touma had not only been given instructions as to the price but he had also been given half the money needed to pay for the ammunition. The obvious inference is that both instructions and money came from Khaled Cheikho. This supports the conclusion that Khaled Cheikho had a co-ordinating role.

Khaled Cheikho submitted that the true meaning of the text messages between Elomar and himself was disguised. He submitted that the only inference which could be drawn from the text messages was that they were arranging to meet. He submitted that it could not be concluded beyond reasonable doubt that the meetings were in furtherance of the conspiracy whereby the two men intended to facilitate transactions to that effect.

This ground is not made out. The very fact that the messages between the two men were coded allows an inference that they were seeking to disguise their content. The submission ignores the fact that phones in false names were being used for the communications. The ground of appeal relies upon particular communications being looked at in isolation, rather than as part of a larger set of communications between the two men. The fact that communication in this way was clearly designed to avoid detection of their activities by the authorities, allowed Whealy J to draw the inference which he did against a background of a much wider range of activities being engaged in by Elomar and Khaled Cheikho.

Of particular significance is the series of calls between Elomar and Khaled Cheikho in the last few days before their arrest. These messages are clearly coded but were designed to arrange meetings. Telephones in false names were used by both of them. The phone used by Khaled Cheikho had been activated on 22 October 2005 and those being used by Elomar were what was described in the trial as the "Pham telephone" and later the "Jenkins telephone". References in those calls to "the rain's coming down hard" and about the "weather being pretty bad" are clearly references to increased police activity.

Of particular significance is the text from Elomar to Khaled Cheikho on 3 November 2005 at 3.31pm: "Hello darling can y let me know if y stil have some rolsof the silver tape I need for this afternoon My credit is finished on my phone Cal me on this nu." This communication is clearly a reference to the fact that Elomar knew that Khaled Cheikho had some rolls of a particular tape which he needed. That was the day that Elomar, Moustafa Cheikho and Sharrouf purchased a number of rolls of expensive high strength aluminium foil insulation tape from Bunnings and 12 x 1 litre Sabco containers. This was against the background of the conspirators seeking to conceal some of the items which they had acquired.

Taking into account the totality of communications between Elomar and Khaled Cheikho, Whealy J was entitled to make the finding which he did beyond reasonable doubt.

Khaled Cheikho submitted that the mere discovery of camping and camping related equipment in the motor vehicles was not sufficient to establish that the two Musso vehicles had been used for the purpose of concealing any item. He submitted that apart from finding a container of hydrogen peroxide, there was no evidence to establish that the items supposedly hidden, were ever in the vehicles at all, let alone that the vehicles were ever driven outside the Sydney area for that purpose.

The difficulty for Khaled Cheikho in making out this ground of appeal is that it focuses on a particular finding without having regard to the overall context, in particular, other findings by Whealy J which, when taken together, comfortably allow inferences to be drawn and findings to be made beyond reasonable doubt.

There was no dispute that by late October/November 2005, the conspirators were aware that they were under observation by the police and likely to be raided. This inference can be drawn from the contents of their computers (the copies of the anti-terrorism bill on the computers of Hasan and Khaled Cheikho on 15 and 16 October 2005). It is not without significance that the Musso ATE-40N, which was found in February 2006 after having been abandoned at a much earlier point in time, contained amongst other things two newspapers dated 5 and 6 November 2005 with articles relating to amendments to the terrorism legislation.

The items purchased by the conspirators at this time allowed the inference that they were seeking to preserve material which had been acquired at an earlier time. Otherwise it is difficult to see why PVC pipes with end caps would have been purchased. Included in the CDs obtained as a result of search warrants was the "White Resistance Manual" which contained a section entitled "Weapons Caching" which gave instructions (with diagrams) on the storage and burial of weapons and ammunition using PVC pipes.

When the arrests took place on 8 November 2005, a number of items known to have been acquired by the conspirators were not recovered.

Apart from the purchase of materials which could be used for storing items already acquired, the contents of the Musso vehicles when searched made it very likely that they had been used in the concealment process. They included a page from the "Trading Post" newspaper, dated 29 September - 5 October 2005, which contained advertisements for properties such as industrial, commercial and farm acreages. There were mattocks, shovels and a rake, all with soil adhering to them. There were maps of areas in the Blue Mountains. This was in circumstances where there was no issue that these vehicles were directly linked to some of the conspirators.

Whealy J was entitled to make the finding which he did. This ground of appeal has not been made out.

Khaled Cheikho submitted that there was a complete lack of evidence to justify a finding that his role was central to the conspiracy.

This ground of appeal, even more than the preceding grounds, seeks to substantially traverse the implications arising from Khaled Cheikho's conviction. As with the other grounds, it focuses on a specific finding in isolation and ignores the background circumstances to the finding. It is sufficient to refer to the co-ordinating role clearly played by Khaled Cheikho in relation to the acquisition of ammunition by Touma and to the escalating level of contact between him and Elomar in the days leading up to the arrests. The content of the telephone intercepts in which he was involved make it clear that he occupied a senior position within the conspiracy.

The flaw in Khaled Cheikho's approach was explained by Simpson J in Tyler v The Queen; R v Chalmers [2007] NSWCCA 247;173 A Crim R 458, where her Honour (with whom Spigelman CJ and Harrison J agreed) said: "83 Identifying the 'role' of a participant by reference to his position in the organisational hierarchy is a very different proposition from isolating the precise physical acts that can be attributed to the particular offender, and selecting the punishment by reference solely to those isolated acts. It would be quite artificial, and contrary to the very concept of a conspiracy, to dissect with precision the physical acts of each of the conspirators, and to sentence that conspirator for those acts alone. That would be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the 'role' of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy - the agreement to participate in an organised criminal activity. 84 That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry: see R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [102]. That, in my opinion, is the first, and most fundamental, flaw in the approach to sentencing here taken. 85 Here, the sentencing overlooked the central 'act' of Chalmers; he agreed, with the other conspirators, to participate in the importation of a large quantity of a prohibited drug into this country. While the authorities establish that identification of the role of the participant (if it can be identified) is relevant (Olbrich) and important, they do not establish that the fact of agreement, and the subject of the agreement, are to be put aside in favour of concentration upon the physical act or acts of the offender. In Savvas the appellant had been convicted of two conspiracies - the first to import, and the second to supply, heroin. The High Court held that, notwithstanding that the offences charged were of conspiracy, the sentencing judge was entitled to take into account that the heroin was in fact imported and distributed pursuant to the conspiracy, and that the appellant was involved in those events. To do so did not involve a contravention of the principle stated in The Queen v De Simoni [1981] HCA 31; 147 CLR 282. There was there no suggestion that it was Savvas who had in fact carried the heroin into this country; nevertheless, on what was decided in the High Court, it was appropriate for the sentencing judge to take into account that the object of the conspiracy had been achieved. The sentencing judge was not confined to sentencing the appellant on the narrow basis of what he actually physically did."

This ground of appeal has not been made out.

Khaled Cheikho submitted that there was no factual basis for Whealy J's finding that he had been a member of the conspiracy between February and November 2005. He noted that there was no evidence of any of the conspirators subscribing to the agreement, so that the finding by his Honour could only have been based on inferences drawn from his actions. He submitted that there was no proper basis for such inferences in that the only significant actions which he performed were accessing documents on the internet. He submitted that the mere accessing of material on the internet was an insufficient basis upon which to conclude beyond reasonable doubt that he had joined the conspiracy in February 2005.

This ground of appeal is subject to the same criticism as Grounds 1 - 4. It in reality challenges the basis on which Khaled Cheikho was convicted. It in effect cherry picks a particular finding for challenge, without having regard to context or background circumstances.

There was no issue that Khaled Cheikho had accessed instructional material on the internet on a number of occasions before and after February 2005. This included information about the construction of explosive devices and the use of, and maintenance of, AK-47 assault rifles. The subsequent ordering of chemicals and involvement in the acquiring of ammunition by him and the conspirators thereafter, was consistent with an intended utilisation of the instructions contained in this material. It is also of importance that he attended the first of the "bonding camps" with some of the conspirators in March 2005.

This ground of appeal has not been made out.

The basis for this ground of appeal was the observation by Whealy J at [63] RoS where he said: "63 ... an intolerant and inflexible fundamentalist religious conviction was the principal motivation for the commission of the offence. This is the most startling and intransigent feature of the crime. It sets it apart from other criminal enterprises motivated by financial gain, by passion, anger or revenge." (See [635] above)

Khaled Cheikho submitted that in this observation Whealy J was treating his "fundamentalist religious conviction" as an aggravating feature of the offence. He submitted that in doing so, his Honour had fallen into error because the concept of a "fundamentalist religious conviction" was an element of the offence.

He submitted that for him to be convicted, the jury must have been satisfied that he agreed to do acts in preparation for a terrorist act, i.e. an act "done ... with the intention of advancing a political religious or ideological cause" (s 101.1(1) of the Code). He submitted that the presence of a "fundamentalist religious conviction" was precisely that which was required under the provision defining the offence in order for the relevant act to be a "terrorist act". He submitted that a religious motivation was therefore an element of the offence.

Khaled Cheikho submitted that although this was a sentencing principle developed by the common law, it applied to sentencing which took place pursuant to s 16A of the Crimes Act. He submitted that the justification for this principle was clear: the elements of any offence had already been taken into account in the calculation of the maximum penalty applicable to the offence. Khaled Cheikho submitted that the principle prohibiting double counting was a matter of such fundamental significance that it continued to operate in the sphere of Commonwealth sentencing and had not been excluded, either implicitly or expressly, by the terms of s 16A, or any other provision of the Crimes Act.

This ground of appeal and the submissions made in support of it are similar to Ground of appeal 1(1) in the application for leave to appeal against sentence brought by Moustafa Cheikho. The submissions by Moustafa Cheikho raise the same issue but are expressed in a slightly different way.

The relevant ground of appeal relied on by Moustafa Cheikho is: Ground 1(1): His Honour erred in assessing the seriousness of the offence. In particular (1) by finding that the crime principally motivated by "intolerant and inflexible fundamentalist religious conviction" was more serious than crimes motivated by a financial gain by passion, anger or revenge.

In support of that ground of appeal, Moustafa Cheikho submitted that Whealy J had erred in assessing the objective seriousness of the offence. This had occurred in two ways. The first was that comparing the offence with "criminal activities [motivated] by a need for financial gain or simply private revenge" involved an irrelevant exercise in that his Honour was comparing this type of crime with an entirely different type of crime. He submitted that it would be hard to imagine an offence of this kind that did not involve intolerant and inflexible convictions.

Moustafa Cheikho submitted that Whealy J erred when setting out his conclusions at [63] RoS. He submitted that the error consisted of taking into account, as matters of aggravation, circumstances which were elements of the offence. He submitted that the presence of such a motivation for the offending was required to be proved as an element of the offence. He submitted that the definition of "terrorist act" in s 101.1 of the Code required proof that the action was made "both with the intention of advancing a political religious or ideological cause and the intention of influencing the government ... or the public". He submitted that in order to constitute the offence, any financial or other motive would have had to have been augmented by motivation of the type described by his Honour.

In order to determine whether these grounds of appeal have been made out, it is necessary to identify what Whealy J was seeking to do in [63] RoS. If he was referring to that motivation as an aggravating factor, then the grounds of appeal have been made out. This is because such motivation has been incorporated as an element of the offence by the definition of "terrorist act" in s 101 of the Code.

When [63] RoS is looked at in context, it is clear that Whealy J was not taking the "mindset" of the appellants into account as a matter of aggravation, but was identifying a distinctive feature of the offending which brought into play particular sentencing considerations.

Paragraph [63] RoS was part of an overall analysis by Whealy J of the "objective seriousness of the offence". It was an unusual offence in that it dealt with preparatory acts which of themselves might appear to have no sinister connotations. It was only when the relevant mental element was established that the preparatory acts could constitute the offence.

By referring to other more conventional offences, which had a different motivation, e.g. financial gain or private revenge, Whealy J was doing no more than highlighting the importance of the mental element in this offence. It might be said, as was submitted on behalf of Moustafa Cheikho, that such a comparison is not particularly helpful in that this offence is very much a stand alone offence. Even if that be the case, contrasting the motivation for this offence with that of more conventional offences in the way in which his Honour did, does not amount to error. It simply emphasises and distinguishes the serious nature of the mental element in this offence by way of contrast with other offences.

Once Whealy J's approach is understood, it becomes clear that he was not using the appellants' "mindset" as a matter of aggravation. To interpret [63] RoS in that way is to misunderstand his Honour's purpose. What his Honour was doing was to identify a distinctive feature of this offence which brought into play particular sentencing considerations.

By approaching the matter in that way, Whealy J was taking into account the analysis by Spigelman CJ (with whom Barr and Price JJ agreed) in Lodhi v The Queen [2007], where the Chief Justice said: "83 The objective acts of the appellant, which did not go beyond collecting materials for future use, did not give rise to any imminent, let alone actual, threat of personal injury or damage to property. Such preparatory acts, even though criminalised, would not at first appear to justify so substantial a penalty. However, the position is different in the light of his Honour's clear and justifiable findings of fact that the appellant has not resiled from the extremist intention with which these acts were performed. ... 87 ... The reference to deterrence in this passage was, no doubt, a reference to both general and specific deterrence. However, deterrence in both respects may, in many cases, be entitled to less weight whenever it appears, as the example of suicide bombers suggests, that the force of an ideological or religious motivation is such that deterrence is unlikely to work. 88 The crimes under consideration in the present case, in which the conduct must occur with the 'intention of advancing a political, religious or ideological cause' (Div 100.1), together with the findings of fact made by Whealy J, suggest that deterrence is of less significance than usual. In such a context, the element of protection of the community is entitled to greater weight than may otherwise be appropriate. 89 In R v Martin (1999) 1 Cr App R (S) 477 at 480, Lord Bingham CJ, as the Senior Law Lord then was, said: 'In passing sentence for the most serious terrorist offences, the object of the Court will be to punish, deter and incapacitate; rehabilitation is likely to play a minor (if any) part'. ... 92 I will refer below to some aspects of the debate about the role of incapacitation in the exercise of a sentencing discretion. However, for purposes of its application in Australian law, this element should be understood as encompassed by the element of 'protection of the community', recognised as a separate element by the High Court in Veen (No 2). 108 In the context of the crimes presently under consideration, incapacitation does not merely refer to the prospect that in the future a particular offender will re-offend. With respect to the crime of preparation for terrorist acts the Court is not simply concerned with future criminal conduct of a recidivist character. It is concerned with the possibility of perfection of the very crime for the preparation of which the offender has been found guilty. 109 Accordingly, the issue is not merely one of punishing an offender for something s/he may do in the future. It is the recognition that the protection of society requires the offender to be prevented from perpetrating the offences which s/he was preparing to commit. Giving the element of protection of society substantial weight, particularly in a context where personal deterrence and rehabilitation are, given the nature of the offence and the findings of fact, entitled to little weight, is consistent with the principle of proportionality laid down in Veen (No 2)."

Read in that way (as it was clearly intended to be) the conclusion of Whealy J in [63] RoS does not involve an element of double counting, but sets out the basis for the application of a specific sentencing principle, i.e. the protection of the community by the incapacitation of the appellants.

These grounds of appeal have not been made out.

Khaled Cheikho submitted that Whealy J erred when having reviewed the conditions under which he would be serving his sentence, he said: "Indeed it is a factor that must diminish somewhat in significance when placed alongside the principal considerations operative when a person is sentenced for a serious terrorism offence."

He submitted that notwithstanding the supposed emphasis which ought to be given to punishment, deterrence, denunciation and incapacitation, there was no warrant for the imposition of a sentence which did not reflect fully the nature of custodial conditions to which an offender was subject. He submitted that the extent to which the nature of the custody could impact upon an otherwise appropriate sentence was quite significant. This was because harsher conditions of custody resulted in harsher punishment which must be reflected by an amelioration of the time spent in custody. He submitted that by reducing the significance of the weight afforded to the onerous nature of his custodial conditions, Whealy J was in effect imposing punishment additional to that which would otherwise have been appropriate.

In support of those propositions Khaled Cheikho relied upon that which the majority (Mason CJ, Brennan, Dawson and Toohey JJ) said in Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 at 473: "It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."

Khaled Cheikho characterised the effect of Whealy J's observation as follows: "His Honour concluded that in order to give effect to the principle of the protection of society, the appellant had to spend a longer period in custody which apparently could be achieved only by giving 'diminished' weight to the custodial conditions. By reducing the significance to the weight afforded to the onerous nature of the appellant's custodial conditions Whealy J was in effect imposing punishment additional to that which would otherwise have been proportionate to the particular offence committed. In other words, the learned sentencing judge was imposing a form of preventative detention supposedly in order to protect the public."

Khaled Cheikho's submissions misstate the effect of what Whealy J said. What his Honour was saying was that this was a factor which had to be taken into account with other factors. The weight to be given to that factor would vary depending upon the circumstances of the case and the weight to be given to other factors. Here, an important consideration was the requirement to give effect to the principle of incapacitation in circumstances where the possibility existed that upon release, a person convicted of a terrorism offence might seek to perfect the terroristic crime which he was conspiring to perform. This was an approach which accorded with sentencing principles.

Whealy J was required to take into account, in favour of Khaled Cheikho, the harsher conditions under which he would serve his sentence. It is evident that he did so. It is really the insufficiency of the allowance about which Khaled Cheikho complains. Just because his Honour noted that this was a factor that must diminish when placed beside other relevant factors, does not mean that his Honour did not give real weight to Khaled Cheikho's custodial conditions. In any event, the extent of the weight to be given to that factor involved an exercise of discretion and error in that exercise has not been demonstrated.

This ground of appeal has not been made out.

This ground was not pressed.

Khaled Cheikho submitted that the sentence imposed by Whealy J was excessive because the offending was interrupted before any real harm had been caused, and the action undertaken was intended to cause serious damage to property, not to people.

This submission is adequately answered by the analysis of Spigelman CJ in Lodhi v The Queen [2007], where his Honour said: "79 The sentence imposed is a substantial one, particularly in view of the fact that there was no actual injury to persons or property. Nevertheless, as Price J emphasises, the provisions creating the offence are directed to preparatory acts and the seriousness with which Parliament regards such acts is manifest in the maximum penalty. By the extended range of conduct which is subject to criminal sanction, going well beyond conduct hitherto generally regarded as criminal, and by the maximum penalties provided, the Parliament has indicated that, in contemporary circumstances, the threat of terrorist activity, requires condign punishment. 80 The statutory guidepost for the exercise of the sentencing discretion is provided by s 16A(1) of the Crimes Act 1914 (Cth): '16A(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.' 81 The very generality of the language - 'a severity appropriate in all the circumstances of the offence' - indicates the breadth of the discretion conferred upon the sentencing judge. ..."

In any event, while there was no evidence that a target for a terrorist attack had been selected or the precise nature of the attack, it was to be an attack which involved either or both the detonation of one or more explosive devices and/or the use of firearms. Although Whealy J found that the intention of the conspirators was to cause "at the very least serious damage to property", such act or acts involving the use of assault rifles and explosives would be very likely to endanger the lives of innocent members of the public. These were clearly relevant considerations which answer the specific complaint made by Khaled Cheikho.

Although not raised in any of the grounds of appeal, in oral submissions senior counsel for Khaled Cheikho submitted that Whealy J's conclusion in relation to him was contrary to the prohibition in s 16(2A)(b) of the Crimes Act. The impugned conclusion was: "His extremist and fundamentalist convictions require his incapacitation for a considerable period of time so as to protect the community." ([106] RoS) Khaled Cheikho submitted that what his Honour was there doing was to take into account a "cultural practice as a reason for aggravating the seriousness of the criminal behaviour of which he was convicted".

The section relevantly provides: "16(2A) However, the court must not take into account under subsection (1) or (2) any form of customary law or cultural practice as a reason for: ... (b) Aggravating the seriousness of the criminal behaviour to which the offence relates."

The effect of Khaled Cheikho's oral submission was that the possession of "extremist and fundamentalist convictions" by persons of the Muslim faith, could be correctly characterised as a "form of cultural practice" and as such, could not be taken into account adversely to Khaled Cheikho.

Even if Khaled Cheikho is entitled to rely upon this submission, it is not made out. It is clear from the context in which Whealy J set out that conclusion that what he was referring to as "extremist and fundamentalist convictions" was not a form of cultural practice. His Honour was referring to a belief by Khaled Cheikho that he was obliged to engage in acts of terrorism to defend his religion. That is not a "form of cultural practice". It follows that his Honour's conclusion had nothing to do with a form of cultural practice and was not in conflict with s 16(2A)(b) of the Crimes Act. To hold otherwise would be inconsistent with the ratio of Lodhi v The Queen [2007] (see [703] above).

Leave to appeal against sentence should be granted, but the appeal dismissed.

Hasan was sentenced to imprisonment for 26 years with a non-parole period of 19 years and 6 months. He sought leave to appeal against that sentence on the following grounds: Ground 9: His Honour erred in his assessment of particular aspects of the objective criminality of the appellant's role in the conspiracy: firstly, by taking into account that the appellant was involved in the attempt to conceal the proceeds of the conspiracy; and secondly, by including the appellant in his observation that the surveillance, listening device and telephone intercept material established a very close association between "the men" and portrayed "very extremist views being expressed between them" for a long time. Ground 10: His Honour erred in his finding that the appellant's prospects of rehabilitation were poor on the basis that he, together with the other offenders, wore his imprisonment as a "badge of honour". Ground 11: His Honour failed to give appropriate weight to the subjective factor of cultural isolation in the context of the appellant's harsh custodial conditions when determining the appropriate sentence to be imposed on him. Ground 12: If his Honour did not err in respect of the matters raised in Ground 11, the sentence was otherwise manifestly excessive.

Hasan gave evidence at trial. A report from Dr Gilandas, a psychologist, was tendered on his behalf. That report was prepared following an assessment that took place at the Goulburn Correctional Centre in November 2009.

Whealy J recorded Hasan's personal circumstances as follows.

He was aged 40 at the time of sentence with 4 children. He was the second of 12 children in a large Bangladeshi family. He attended school between the ages of 8 and 16. His native language was Bengali. He did not speak Arabic, except in a limited manner. Despite having been in Australia for 20 years, his English was "fairly basic".

Hasan came to Australia at the age of 20 in 1989. He gave up studying Business Computing because his English was not good enough. His employment was mainly in unskilled areas and was sporadic. His wife divorced him while he was in custody.

The psychologist thought that he was suffering from depression, although there was no evidence of any perceptual or thought disorder or any other psychotic phenomena. The psychometric assessment put him into the severely depressed range. Although he was anxious about his future, Whealy J concluded that the testing demonstrated that he was adapting better to his situation and had lowered his expectations for the future. The psychologist's report noted that he was culturally isolated in prison and that he found it difficult to integrate himself within the Lebanese prison community who tended to be "clannish". The psychologist's report reinforced the conclusion which his Honour had already reached, that the conditions of Hasan in custody were onerous.

In an affidavit placed before the Court, Hasan indicated that family visits had dwindled over time and that as of the date of sentencing, he only occasionally saw his ex-wife and children. He had not received a visit from his ex-wife and children for almost a year.

There was a measure of agreement between the Crown and him as to the facts on which he should be sentenced. On that issue, Whealy J said: "118 I turn to examine the basis on which Hasan has acted in furtherance of the objects of the conspiracy. Indeed, the Crown and Ms Yehia are in substantial agreement as to the basis on which, for sentencing purposes, the Court may determine the acts of participation. The only real difference between counsel is the issue as to whether Hasan was knowingly engaged in acts intended to acquire laboratory equipment to facilitate the manufacture of explosives earlier than May 2005. In my view, the evidence establishes beyond reasonable doubt that he was knowingly engaged in this pursuit as early as February 2005. Ms Yehia's arguments centred upon certain aspects of the evidence given by Hasan at trial. There was evidence, senior counsel submitted, that laboratory equipment was used by Khalid Vetter for his perfume business and that Vetter was found in possession of such equipment in November 2005. That is true, although a significant amount of the equipment was missing from the material found under Vetter's house. There was also evidence (accepted by the Crown) that Hasan was not in Sheikh Bakr's premises when the latter made the damaging remarks about doing 'maximum damage' to the Australian community. Moreover, Ms Yehia pointed to the evidence that Sheikh Bakr had been visited by Mr Hasan for a number of reasons including a desire to seek marriage counselling at the insistence of his wife."

Whealy J made the following findings as to Hasan's criminality: "119 ... I nevertheless find, beyond reasonable doubt, that the discussion of the Haines laboratory list on 23 February 2005 was in connection with the future acquisition of laboratory equipment for the purpose of making explosives. Hasan denied that this was so in his evidence, but I reject the majority of his evidence on the basis that it was a self-serving, carefully concocted attempt to distance himself from the conspiracy and, at the same time, to whitewash his co-offenders. In my view, his evidence was a deliberate attempt to distort the truth so as to push the blame on to the man Baladjam and other persons and, in that regard, to further remove blame from the other offenders. The Crown case against him was a very powerful one. Indeed, it may be said that his evidence was an almost impossible attempt to absolve himself and to whitewash the other offenders. It was all the more difficult because there were so many matters that called for an explanation. Hasan's attempt to climb these 'mountains' of circumstantial fact was virtually an impossible task. I have no doubt that the jury rejected the great bulk of his evidence as do I. 120 Consequently, I am satisfied beyond reasonable doubt that Hasan was involved in the preparation of a list of laboratory equipment for the purposes of the conspiracy, and that this was occurring both on 23 February and as at 4 May 2005. I am similarly satisfied that Hasan was involved in the manoeuvres by Aimen to order the laboratory equipment from the Haines organisation and that these were in connection with the objects of the conspiracy. Ms Yehia did not dispute that it would be open to the Court to find beyond reasonable doubt that Hasan was involved in the ordering and/or collection of chemicals between 28 September and 5 November 2005. It was common ground that he and Jamal attended Auto King and ordered a large quantity of battery acid and distilled water on 28 September 2005. On the same day, Hasan attended Peter's Hardware Store and ordered acetone. In the first week of October 2005, Hasan attended Padstow Hardware and ordered acetone and methylated spirits, returning on 5 November with the intention of collecting those items but failed to do so in circumstances I have mentioned earlier. It is not disputed, for the purposes of this sentencing hearing, that these acts were done in furtherance of the conspiracy to commit acts in preparation for a terrorist act or acts. The chemicals were to be acquired to facilitate the manufacture of explosives. As I have said earlier the collection of the large amount of battery acid was frustrated for reasons which are not entirely clear. Hasan's endeavours to collect chemicals on 5 November 2005 were also plainly frustrated, but this was because of his concern that he was either under surveillance or likely to be followed. ... 123 While I accept that Hasan probably had a somewhat limited ability to comprehend a good deal of the material contained in the extremist documentation tendered by the Crown, I find beyond reasonable doubt that, generally, he well understood the nature of this material and regarded it as informative and inspirational so as to feed his beliefs about the need for violent jihad in this country. I reject his evidence that the CDs came into his possession by way of handouts at the Prayer Hall at Lakemba. No doubt, some of the material did, but I do not accept for a moment that this was so in the case of the vast body of the material. It needs to be emphasised in the case involving Hasan, as with the others, that this large body of extremist and fundamentalist material was important to the formation of the mindset that spurred his entry into the conspiracy and his willing participation in it. 124 Hasan's participation in the criminal enterprise was central to it. It could not, in any sense, be regarded as marginal or peripheral to the conspiracy or its execution. Hasan performed, or was complicit in the performance by others, of significant acts in preparation carried out pursuant to this conspiracy. Hasan would have been well aware that other conspirators were, were to be, or had been, engaged in other complementary acts in preparation. While his activities were central to the conspiracy, I am not satisfied beyond reasonable doubt that he was a co-ordinator or a leader. I have earlier remarked on the difficulties of establishing with clear precision the hierarchy in this conspiracy. Hasan was plainly an active and useful participant in the collection of equipment and chemicals but he could scarcely be regarded as a co-ordinator of the enterprise. Certainly, he could not be described as the financier of the enterprise, even though on a number of occasions he had to hand over reasonably large amounts of cash. It is not clear where the money came from in any of these instances. But I accept that it was not from his resources or from his own monies personally."

On the basis of those findings, Whealy J accepted the submission that, on the probabilities, Hasan was not a co-ordinator of the venture and that he should be treated differently to Elomar and Khaled Cheikho. His Honour found that the difference was not a significant one. His Honour found that, like all of the offenders, he was fully committed to the outcome of the enterprise and that his role was central to the conspiracy. His Honour said: "125 ... Like them, he was driven to it by his extremist religious convictions. Hasan was engaged in activities in furtherance of the conspiracy between February and November 2005. He was resolute and inventive in achieving the tasks he undertook, even if there were an elements of clumsiness or lack of preparation in relation to some aspects of his activities. He plainly had a role in the concealment process."

By way of mitigation, Whealy J accepted that in Hasan's case, as with the other offenders, no target was identified and it was not established by the Crown that it was his intention that people would be killed, although the conspiracy necessarily envisaged serious injury or death as a possible consequence of the use of an explosive device or the use of firearms, or both. His Honour did not accept a submission that the ordering of chemicals was less serious than actually obtaining them. He found that the chemicals failed to be collected simply because of a series of fortuitous circumstances. His Honour took into account the absence of any criminal history and that Hasan's custodial conditions to date had been onerous and were likely to be so for the future. He accepted that he was more culturally isolated than the other offenders and that his family situation was an unhappy one. His Honour was not prepared to find that his family circumstances were such as to reach the level of exceptional circumstances. In that regard, his Honour noted that he had not heard any evidence from Hasan's former wife.

Whealy J concluded: "130 ... Hasan has shown no remorse whatsoever. He has not renounced in any way the extremist views which led him to the commission of the subject crime. His prospects of rehabilitation are poor. The very religious convictions that sustain him in the difficult burden of his incarceration are those same convictions that fuelled his decision to enter upon an enterprise that had the potential to pose such a serious and significant threat to the Australian community. As I say, there is no evidence whatsoever to show that he has backed away from any of those convictions. ..."

The part of this ground of appeal challenging the finding that Hasan was involved in the attempt to conceal the acquisitions of the conspiracy was not pressed. Hasan relied only upon the second part of the ground. The practical effect of that concession was that the Court was not required to consider pars [313] - [317] of his written submissions.

The Court was advised that the balance of that ground which related to surveillance listening device and telephone intercept material would be taken into account as part of Ground 10.

Hasan submitted that there was no evidence that he ever expressed extremist views on any occasion. He submitted that the extremist material in his possession was not capable of reflecting his state of mind, particularly insofar as it related to the status of his imprisonment. Hasan submitted that there was no evidence to support the finding at [91] RoS to the effect that he wore his imprisonment as a "badge of honour".

He submitted that in this finding, Whealy J drew no distinction between the offenders and as a result, failed to take into account the absence in relation to him of any expressions of hatred or extremist views. He submitted that although a number of the telephone intercepts involved him, they did not demonstrate expressions of hatred or extremist views such as had occurred in the case of some of the other co-offenders. In support of that proposition, Hasan relied upon the "Summary of Material Evidence" produced by the Crown in the appeal.

In relation to his possession of the "commonality" extremist material, Hasan relied on his evidence as to how he acquired that material, i.e. given to him on a Friday night after prayers, including CDs which he asked his wife to copy onto the computer. He submitted that of the 359 CDs which were seized when the search warrant was executed at his home, only 21 contained anything which the Crown relied upon as extremist material. He relied upon his evidence that he did not watch that material and that although he had seen one or two of the execution videos, he did not endorse them.

Finally, on that issue, Hasan submitted that he did not understand, speak or read Arabic and that some of the extremist material was in Arabic. He submitted that there was no direct evidence that he viewed or accessed the extremist material. He relied upon the expert evidence of Mr Ghosh to the effect that the evidence suggesting that he accessed this material was ambiguous at best. He also relied upon the report of the psychologist, Dr Gilandas, which did not refer to him holding such defiant opinions in relation to his imprisonment.

This submission does not properly take into account the findings of Whealy J at [123] RoS (see [730] above). There, his Honour allowed for the fact that Hasan may have had difficulty in "comprehending a good deal of the material contained in the extremist documentation", but specifically found that he well understood the nature of the material. Such a finding was open to his Honour on the basis of the totality of the telephone intercepts, in particular the dedication with which Hasan pursued the acquisition of chemicals in accordance with the directions which he received from Khaled Cheikho.

The submission also fails to take into account the consequence of Whealy J's unqualified rejection of Hasan's evidence that the CDs came into his possession by way of handouts at the Prayer Hall at Lakemba. It was open to his Honour to infer from the close association between Hasan and his co-offenders, and the steps which he took to acquire chemicals, that he shared their views and motivation. It is difficult to explain his actions otherwise. This is so even though he was not recorded as expressing "extremist opinions".

The submission that Hasan's collection and possession of extremist material was not reflective of his state of mind, in the context of the evidence of his actions in furtherance of the conspiracy, ignores what must have formed the basis for his conviction by the jury of the offence on the indictment.

When considering this ground of appeal and the sentence grounds of appeal generally, the implications of the conviction, given the width of the count on the indictment, need to be kept in mind. These include the commitment by each offender to the outcomes of the enterprise to do acts in preparation for a terrorist act, being motivated by the concept that Islam was under attack, and that each conspirator had to come to its defence and that of Muslims overseas by preparing for violent jihad in Australia.

With specific reference to Hasan's prospects of rehabilitation (which is the basis of the complaint in this ground of appeal), Whealy J made the obvious point that the maintenance of the extremist views which led to the commission of the offence by Hasan, was inconsistent with reasonable prospects of rehabilitation. As his Honour noted at [130] RoS, the very religious convictions to which Dr Gilandas referred, which were sustaining him while serving his sentence, were the same convictions that led to him engaging in the offence.

These grounds of appeal have not been made out.

Hasan submitted that although Whealy J said that he took into consideration his cultural isolation, no effective weight was given to this fact when sentencing. He submitted that this was apparent when comparing his sentence to that of Moustafa Cheikho, who was treated by his Honour as being at the same level within the conspiracy as him.

He submitted that despite Whealy J being careful not to put too much emphasis upon the role of each offender within the conspiracy in assessing the individual criminality in the enterprise (thereby adopting the comments in Tyler and Diesing v Regina [2007] NSWCCA 326), the difference in subjective factors between him and Moustafa Cheikho should have led to a difference in the ultimate sentence imposed. This was because he had a much stronger subjective case than Moustafa Cheikho had. He was isolated and depressed, had basic English and no Arabic, had received nil visits for over a year before sentence, was experiencing cultural isolation, and was estranged from his wife and four children.

He submitted that general principles in respect of hardship in custody were well recognised in the cases of Regina v Totten [2003] NSWCCA 207 and R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304. He submitted that these principles applied because of the conditions under which he was serving his sentence, yet proper regard had not been given to them in that he had received the same sentence as Moustafa Cheikho.

The difficulty with this submission is that Whealy J clearly acknowledged that Hasan was experiencing cultural isolation and that he would take it into account. What his Honour said was: "128 ... I accept that he is more culturally isolated than the other offenders although, at the moment, he has the company of Omar Jamal with whom he is on friendly terms. I accept that his family situation is an unhappy one for him. ... I have sympathy for his position but Hasan is clearly the author of his own domestic misfortune. It is scarcely surprising that he has been abandoned by his family." The effect of this ground of appeal is to challenge the exercise of discretion by his Honour on the basis that although he took into account Hasan's "cultural isolation", he did not give it sufficient weight.

Implicit in the submission is the assumption that in every other respect Hasan's position was similar to that of Moustafa Cheikho so that the fact that they received the same sentence indicates a wrongful exercise of discretion. As will be seen when considering the position of Moustafa Cheikho, that foundational proposition has not been made out. In that regard, the findings that he was knowingly engaged in acts intended to acquire laboratory equipment to facilitate the manufacture of explosives, as well as in the ordering and collection of chemicals for that purpose between 28 September and 5 November 2005, is of importance.

While the authorities on which Hasan relies say that matters such as cultural isolation can be taken into account as a discounting factor when sentencing, they also say that ordinarily not much weight should be given to that factor. The authorities do not go so far as to say that in every case where that consideration exists, it should operate to discount the sentence.

In the circumstances, Whealy J's exercise of discretion in this instance has not been shown to be in error and consequently this ground of appeal has not been made out.

Hasan did not make any submissions in relation to this ground and relied upon the submissions made by Moustafa Cheikho. This ground will be considered when dealing with the application for leave to appeal against sentence brought by Moustafa Cheikho.

Leave to appeal should be granted but the appeal dismissed.

Moustafa Cheikho was sentenced to imprisonment for 26 years with a non-parole period of 19 years and 6 months.

He sought leave to appeal against sentence on the following grounds: Ground 1(1): His Honour erred in assessing the seriousness of the offence. In particular (1) by finding that the crime principally motivated by "intolerant and inflexible fundamentalist religious conviction" was more serious than crimes motivated by financial gain, passion, anger or revenge. Ground 1(2): His Honour erred by finding as a fact that "the materials were to hand and the recipes for the construction of explosives were available", that "arrangements would be put into effect sooner rather than later" and "the plan might well have come to fruition in early 2006". Ground 1(3): His Honour erred by failing to give sufficient weight to either or both (a) the fact that no target had been selected and no decision had been made as to what would be the precise nature of the terrorist act or who would carry it out; or (b) it could not be established beyond reasonable doubt that any of the offenders intended to take human life, rather that the only finding available, to the requisite standard, was that each offender intended serious property damage. Ground 2: His Honour erred in finding the appellant's prospects of rehabilitation were poor on the basis that he, together with the other offenders, wore his imprisonment as a "badge of honour". Ground 3: The sentence is manifestly excessive.

Moustafa Cheikho did not give evidence. Information concerning his subjective case was obtained from a report of the psychologist, Mr Watson-Munro, which was tendered on his behalf. He was born in 1977 and was aged 32, shortly to turn 33, at the time of sentence. He had no criminal history. He was born in Australia and had a sister and three brothers. His parents separated when he was 12 and before the separation, a domestic situation of considerable tension existed in the family home. The psychologist's report stated that the absence of a father as a role model impacted on Moustafa Cheikho's self-esteem and adversely affected his schooling. He attended Condell Park High School from years 7 to 12 inclusive where he completed his HSC. His studies were essentially trade focused, so that he spent only two days at school and three days at TAFE.

Upon leaving school, Moustafa Cheikho secured an apprenticeship as a motor mechanic. Before he obtained his final qualification in that trade, he suffered an injury to his back. Thereafter, he worked in the security industry until about 2003. While in that employment, he obtained a licence to use a firearm, but as a result of increasing interest in him by both the AFP and ASIO, he lost his licence to do security work and to carry a pistol. He was married in August 2002 and had a son aged five at the time of sentence. His wife and son used to visit him every week. His wife was not in good health.

The psychologist's report stated that from 1995 onwards, his interest in the Koran had developed and intensified until he made a full commitment to the devout observation of his religion in 1999. He had attended the Prayer Hall at Lakemba twice a day during the preceding 10 years. The decision to follow this strict religious path caused difficulty amongst his former friends and led to him developing new friends at the Mosque. He became increasingly under the influence of his uncle, Khaled Cheikho, with whom he continued to have a strong bond "to this day". During this period Moustafa Cheikho experienced an escalating sense of isolation from the broader community. With the passage of time he developed a strong sense of faith and commitment to the teachings of the Koran which was a source of immense support for him during his time in prison.

The report stated that he was a well oriented person with no indications of gross psychopathology. He was suffering considerable strain and anxiety referrable to his pending sentence and the broader implications that this would have on his family. He derived great comfort from his faith and from the visits he received from a religious advisor. The report set out in detail the difficult circumstances under which he was serving his imprisonment.

Whealy J summarised the submissions of Moustafa Cheikho as follows: "136 ... These submissions, first, identified the same point as has been made on behalf of the other four offenders. This was that no target had been identified by the prosecution and that the Court could not be satisfied beyond reasonable doubt that the intended terrorist act was to be specifically and directly aimed towards the death of, or serious injury to people. Those matters have been accepted. Thirdly, the submissions argued that the preparatory acts were 'very preliminary'. Mr Button accepted that it would be open to the Court to find beyond reasonable doubt, on the evidence, that the offender had a role to play in connection with the taking of a number of preliminary steps towards the building of a detonator for a bomb. In addition, the concession was properly made that there is evidence that would enable the Court to accept beyond reasonable doubt that Moustafa Cheikho had a role to play in the concealment operation towards the end of the conspiracy. Mr Button submitted, however, that it would not be open to the Court to find that Moustafa Cheikho was a planner or co-ordinator in the enterprise. Rather the Court might properly find, on the probabilities, that he was 'a doer' or a 'taskee' as senior counsel expressed it."

Whealy J noted that there were two matters at trial alleged against Moustafa Cheikho which were in serious dispute. They were whether he was the person who had trained at the LeT camp in Pakistan in 2001 and whether he was the person who attended the Menai Soul Pattison chemist in June 2005 and purchased 24 bottles of hydrogen peroxide.

Whealy J accepted that Moustafa Cheikho was in Pakistan at that time and had attended the LeT camp. His Honour did not take that finding into account as a matter which aggravated the offence. He took it into account as a piece of circumstantial background evidence. His Honour said: "139 ... It does no more than satisfy me that the radicalisation of Moustafa Cheikho had its commencement in that part of his life history when he trained with LeT in 2001. It predisposed him towards hatred and intolerance towards those persons who were, as he saw it, persecuting Muslims overseas. It established in him a jihadist mentality that was later to be reflected in some of his radical views and intolerant attitudes."

Whealy J was not prepared to find beyond reasonable doubt that it was Moustafa Cheikho who purchased the hydrogen peroxide at Menai in June 2005. His Honour did note, however, that the hydrogen peroxide which was purchased was later discovered by chance behind the premises of Khaled Sharrouf, not far from the home of Moustafa Cheikho. Moustafa Cheikho had a number of bottles of hydrogen peroxide at his home when it was searched and although he had an explanation for this, his Honour found that he would have been aware that hydrogen peroxide was being acquired for the purposes of the conspiracy, even if he were not the purchaser.

Whealy J specifically found: "141 ... that Moustafa Cheikho engaged in acts in preparation for the manufacture of a detonator suitable for the detonation of an explosive device. This finding relies in particular on material found at his home on 8 November 2005. There were weapons and ammunition found, but I am not satisfied beyond reasonable doubt that these had anything to do with the conspiracy. Of more significance were the contents of a tool box found in the second bedroom. It contained items including battery leads, off-cuts of electrical wire, a single switch, batteries and six small LED type electrical lights with purple ends. ... This material was plainly consistent with other instructional material in the possession of the conspirators detailing the possible way in which a detonator could be made to connect with a primary explosive. There was also found on Moustafa Cheikho's computer a two-page document being a file located in the Temporary Internet Files folder of the computer. This was for a bombing device triggered by a mobile phone. It had been created on 4 November 2005. ..."

Whealy J noted that the Crown called expert evidence at trial that identified and detailed chemicals and materials capable of being used in the construction of explosives and the detonation of explosive devices. That evidence was to the effect that chemicals acquired, or sought to be acquired, for the purposes of the conspiracy could be used to make explosives such as TATP and HMTD. The expert was able to demonstrate that an electric current applied to an exposed filament from a small decorative light could be used to initiate an explosion of TATP. This evidence showed how improvised explosive devices could be constructed out of simple household components, such as a digital alarm clock and tungsten wire from a small decorative light globe.

Whealy J found: "143 The possession by Moustafa Cheikho of the material I have identified, illuminates the proposition that his role, concerned as it was with preliminary steps in the manufacture of a detonator or detonators for explosives, was central to the conspiracy. It fitted in precisely with the roles of others whose task was more directly related to the obtaining of chemicals that might be used in those explosives. The fact that the conspiracy was moving towards the preparation of a detonator for explosives, and that it possessed instructional material to this effect, was an indication that the planning was moving well ahead. It was by no means entirely preliminary, as senior counsel had submitted. 144 I am also satisfied beyond reasonable doubt that Moustafa Cheikho was involved in the concealment process in early November 2005. He was one of those involved in the purchase at Bunnings of silver tape and containers on 3 November 2005. There is material that links him with the Touma end caps, and the Musso vehicle ATE-40N. His fingerprint was found, for example, on the Sydney Morning Herald of 5 and 6 November 2005, an edition which had an article in it concerning John Howard and the new counter terrorism laws. The concealment of materials acquired for the purposes of the conspiracy was centrally important to it at that stage. Indeed, the process was, as I have remarked earlier, successful in a number of areas since some of the materials have never been recovered. 145 As I have found with the offender Hasan, I conclude that there is insufficient evidence to be satisfied beyond reasonable doubt that Moustafa Cheikho's role was that of an overall co-ordinator or strategist in the conspiracy. His role was nevertheless, important and he was fully committed to the outcomes of the criminal enterprise. I accept, however, Mr Button's submissions that his role was more of a 'doer', albeit a very willing one. There is an abundance of evidence in hard copy form at his home, and in the material found on his computer or in discs, that demonstrates that he was fully radicalised and committed to extremist action. This is borne out as well by a number of very intolerant and derogatory statements he made during the course of the conspiracy. These were captured on the listening devices. They are itemised in the evidence and there is no need for me to repeat them in these remarks on sentence."

Whealy J's conclusions as to rehabilitation and remorse were: "146 Moustafa Cheikho has shown no remorse or contrition. He has made no acknowledgement of his wrong doing. Indeed, as Mr Button pointed out, he simply maintains his innocence. There is no evidence of his stepping back from the clear extremist views he has held for some time with great firmness and conviction. He remains a danger to the community and, so far as one can predict, he is likely to represent a danger even upon his release many years hence. Mr Button submitted that because of the long sentence he will sustain there must be some prospect of rehabilitation. I agree with Mr Button that it would be an outcome to be cherished, but I see no evidence of it at this stage. None whatsoever, I regret to say. Some recognition in the sentencing process must be given for the way in which Mr Button and his legal team endeavoured to facilitate the pre-trial issues and, indeed, the tendering of evidence before the Court. In the particular situation of this offence, the recognition must however, be necessarily a muted one."

This ground of appeal has already been dealt with at [695] - [705] above and does not require further comment. It is rejected.

Moustafa Cheikho submitted that Whealy J's finding that the terrorist act being prepared for was imminent or "not remote" was made upon an incorrect factual basis. He argued that the finding should not have been taken into account as increasing the objective seriousness of the offence. He submitted that put at its highest, the evidence was equivocal as to when, if ever, any terrorist attack might have occurred, and it was speculative to conclude that it was likely to occur in early 2006.

Moustafa Cheikho submitted that while it was correct to say that recipes for the construction of explosives were available, the evidence did not establish that the necessary materials were to hand in quantities that would allow the manufacture of explosives in an appropriate quantity. He submitted that ingredients for the manufacture of explosives had not been obtained in any substantial quantities. He submitted that as at 8 November 2005 when the arrests took place, the attempts to purchase large quantities of acid, acetone, methylated spirits and other chemicals were either not complete or were entirely unsuccessful.

He submitted that the finding also disregarded that part of the Crown case to the effect that, when the conspirators became aware that the authorities were "closing in", they commenced preparations to hide or cache some or all of the instruments of the conspiracy. He submitted that there was no evidence before the jury as to how long the conspirators intended to hide or cache the material. In that regard, he noted that the instructional material, which was available for this purpose, spoke of the need to go to such lengths when a person wanted to keep such materials safe for some time (e.g. the "White Resistance Manual").

It is necessary to place Whealy J's finding in context. What his Honour said was: "68 .... I accept the Crown's submission that the arrangements were relatively well advanced and were characterised by a clear and logical inevitability, namely that, but for the intervention of the authorities, such arrangements would have been put into effect sooner rather than later. In that sense, the conspiracy was advanced to such an extent that it could not be said its outcome was remote. More work needed to be done, of course, but there is no reason to doubt that, absent the intervention of the authorities, the plan might well have come to fruition in early 2006 or thereabouts."

What is immediately obvious is that Whealy J was not making a precise finding. What he was doing was setting out his conclusion that "such arrangements would have been put into effect sooner rather than later" and that the eventual implementation of the object of the conspiracy was not "remote" or "completely indeterminate as to when it would occur". His Honour was saying no more than that this was an actual, as distinct from a theoretical, plan which the conspirators intended to implement.

Whealy J's conclusion was justified on the evidence. It is not without significance that Moustafa Cheikho had available to him materials which could be used for the construction of a detonator. The construction of a detonator presupposes the existence of something to be detonated. This allows an inference to be drawn that the planning for an explosion was sufficiently advanced that consideration was being given as to how the explosion was to be triggered.

It is not without significance that when the arrests took place, chemicals which were known to have been purchased by the conspirators were not found and the inference was drawn that these had been cached. The amount of chemicals actually acquired by the conspirators is not known. Some idea of the quantity can be inferred from the large orders which were made by some of the conspirators, albeit they were not collected because of fears of police surveillance. In that regard, despite a belief that they were under observation, some of the conspirators were still making inquiries at that time about picking up chemicals, e.g. Baladjam in relation to Autoquip, Hasan attempting to pick up items from Padstow on 5 November 2005 and Moustafa Cheikho downloading to his computer information about detonators on 4 November 2005.

Whealy J's statement was expressed at a relatively high level of generality. It was, however, firmly based in fact. The point which his Honour was making was that this was not a purely theoretical exercise but was one based on the actual acquisition of ingredients to make explosives with an intention that such an explosive device or devices would be used.

This ground of appeal has not been made out.

Moustafa Cheikho noted that s 19AG(3)(a) of the Crimes Act provided that: "A sentence of imprisonment for life for a minimum non-parole offence is taken to be a sentence of imprisonment for 30 years for the offence." 780 He also noted that this offence was included in the definition of a "minimum non-parole period offence". By reference to those provisions, he submitted that 30 years represented the maximum head sentence to which he could have been sentenced for this offence. Taking into account his position in the hierarchy of the conspiracy, the absence of any prior convictions and his difficult conditions of custody, he submitted that the heavy head sentence imposed on him meant that sufficient weight was not given to the fact that no target had been selected and no decision had been made as to the precise terrorist act. He submitted that this could be inferred from the notional maximum sentence of imprisonment for 30 years when compared with the sentence of 26 years actually imposed on him.

There are a number of answers to that submission. As was made clear in Lodhi v The Queen [2007], the fact of there being no identified target nor an identified act of terrorism, does not prevent an offence of this kind being properly regarded as most serious. There, Spigelman CJ said: "79 The sentence imposed is a substantial one, particularly in view of the fact that there was no actual injury to persons or property. Nevertheless, as Price J emphasises, the provisions creating the offence are directed to preparatory acts and the seriousness with which Parliament regards such acts is manifest in the maximum penalty. By the extended range of conduct which is subject to criminal sanction, going well beyond conduct hitherto generally regarded as criminal, and by the maximum penalties provided, the Parliament has indicated that, in contemporary circumstances, the threat of terrorist activity, requires condign punishment. ... 83 The objective acts of the appellant, which did not go beyond collecting materials for future use, did not give rise to any imminent, let alone actual, threat of personal injury or damage to property. Such preparatory acts, even though criminalised, would not at first appear to justify so substantial a penalty. However, the position is different in the light of his Honour's clear and justifiable findings of fact that the appellant has not resiled from the extremist intention with which these acts were performed."

Price J made observations to similar effect: "227 His Honour erred, Mr Boulten SC submits, by concluding that the objective seriousness was significant despite the [offending] acts being at a preliminary stage. Although it is true, Mr Boulten SC concedes, that the purpose of the legislation is to criminalise preparatory acts the level of culpability must necessarily depend, he submits, on the proximity between the appellant's act and any potential terrorist act. 228 The proximity of the offending act to the substantive offence is of relevance in the assessment of the culpability of an attempt to commit a crime. With the relevant state of mind the offender must do some act towards the commission of the offence which goes beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of the intended crime: R v Mai (1992) 25 NSWLR 371; 60 A Crim R 49. The unlikelihood of success of an attempt, although the ultimate crime is physically possible, is relevant to the consideration of the objective seriousness of the offence. The inter-relationship between the seriousness of the intended consequences and the real prospects of achieving them is a factor to be weighed in the light of all the circumstances: R v Taouk (1992) 65 A Crim R 387. 229 The present offences, however, are not crimes of attempt. Sections 101.4, 101.5 and 101.6 of the Criminal Code Act 1995 (the Criminal Code) extend criminal liability to acts of preparation. The proximity between the criminal act and the commission of the substantive offence is necessarily more remote. These are anticipatory offences which enable intervention by law enforcement agencies to prevent a terrorist act at a much earlier time than would be the case if they were required to wait for the commission of the planned offence or for an unsuccessful attempt to commit it. The proximity between the preparatory act and the completion of the offence, although relevant, does not determine the objective seriousness of such an offence. It does not follow that as long as the preparatory acts relied upon to constitute the offences are in their infancy criminal culpability must necessarily be low. The main focus of the assessment of objective seriousness must be the offender's conduct and the offender's intention at the time the crime was committed. 230 Having found that the appellant's acts were at a very early stage, Whealy J determined that an evaluation of criminal culpability required analysis not only of the act itself but an examination of the nature of the terrorist act contemplated particularly in the light of the appellant's intentions or state of mind. The three offences were to be viewed, his Honour said, in their entirety. The Judge pointed out that the very purpose of the legislation is to interrupt the preparatory stages leading to the engagement in a terrorist act so as to frustrate its ultimate commission. I see no error in his Honour's reasoning."

There is a further response to the submission. Section 19AG(3)(a) of the Crimes Act provides for no more than a notional maximum sentence of imprisonment with a corresponding non-parole period. It provides no upper limit: Cheikho v R (NSWCCA, 8 October 2008, unreported) at [10]. There was nothing to stop Whealy J imposing a head sentence of greater than 30 years, had he determined that such a sentence was appropriate.

This ground of appeal has not been made out.

In support of this ground, Moustafa Cheikho adopted the submissions of Hasan. That ground, as relied on by Hasan, was considered at [740] - [745] above. The same considerations apply here. In addition, there is the conclusion of Whealy J at [168] RoS which has not been challenged.

Moustafa Cheikho submitted that, for reasons already referred to in support of Ground 1, the sentence imposed on him was manifestly excessive. He submitted that those errors in Whealy J's assessment of the objective seriousness of the offence must have adversely affected the length of the sentence imposed. Moustafa Cheikho accepted that the success of this ground depended largely upon the success of Ground 1 with its component parts.

Moustafa Cheikho acknowledged that in the sentencing proceedings, senior counsel appearing on his behalf submitted to the Court that a period of imprisonment with a non-parole period of 20 years was within the range of available sentences, although at the "absolute top of the range". He acknowledged that this did weaken the force of this ground of appeal.

To the extent that there are any comparable cases, it should be noted that Whealy J found that the criminality in this matter was significantly higher than that in Lodhi v The Queen [2007], who was sentenced to imprisonment for 20 years with a non-parole period of 15 years. It could not be said that the sentence imposed on Moustafa Cheikho and on Hasan was out of step with the reasoning in Lodhi v The Queen [2007].

As Moustafa Cheikho properly conceded, the success of this ground is largely dependent upon the success of the issues raised in Ground 1. Since that ground was not made out, this ground of appeal should also fail. The concession made by senior counsel for Moustafa Cheikho in the sentencing proceedings was a proper one and is consistent with such a result.

This ground of appeal has not been made out.

Leave to appeal should be granted but the appeal dismissed.

Jamal was sentenced to imprisonment for 23 years with a non-parole period of 17 years and 3 months. He seeks leave to appeal from that sentence on the following grounds: Ground 9: His Honour erred in his finding that Mr Jamal's prospects of rehabilitation were poor (or as poor as his co-conspirators). Ground 10: Mr Jamal has a legitimate sense of grievance when his sentence is compared to his co-conspirators.

Jamal did not give evidence in the sentencing proceedings. There was before the Court a report of a psychologist, Dr Christopher Lennings. Whealy J relied upon that report, which was based on an interview on 30 November 2009, for his findings as to Jamal's subjective case.

Jamal was born in 1984 in Australia. There were eight brothers and four sisters, with him being a middle child. Jamal reported that he received some significant abuse and neglect as a child from his father and an older brother. He expressed concern that the male members of his family were not allowed to visit him in prison. A number of his brothers had criminal records.

He did not get on well at school. He had difficulties with teachers and other children and was expelled in year 9. He completed the equivalent of a year 10 certificate at TAFE. He had an interest in computers and until the time of his arrest, was running his own business of building and fixing computers.

Initially Jamal mixed with a group of friends who abused drugs and alcohol. His eldest brother persuaded him to leave that group and introduced him to the Mosque. Gradually he became religious and devout and started to receive lessons about Islam. Through this he was introduced to his brother's friends who included some of the co-offenders. This relationship continued when his brother left the country.

He told Dr Lennings that he regarded himself as a "moderate Muslim". He said that in truth he liked his computers more than he liked religion. He said that his brother had downloaded onto his computer a number of radical Islamic tracks but that he had hardly looked at the material. He never looked at terrible scenes of beheadings etc, saying that he did not want to look at "that kind of stuff". He did read some articles, but maintained that this was only moderate Islamic material.

Jamal told Dr Lennings that he did order two types of chemicals, but was doing so in order to help a friend set up a battery re-conditioning business. He said that he was not "an extreme person, or someone who wanted to hurt others". He was struggling to accept the verdict of the jury. He said that it was hard to get a fair trial as a Muslim.

Dr Lennings concluded that Jamal was a young man experiencing a degree of depression as a result of his already long incarceration. He assessed him overall as having a low risk of future anti-social behaviour. He was unable to come to a conclusion about the risk of future terrorist activities because there was insufficient evidence to allow him to make a risk assessment. He could not find any support for concluding that Jamal was at a high risk of committing a further terrorist act. He made the point that Jamal's future in prison would be a difficult one.

Three witnesses were called on Jamal's behalf in the sentencing proceedings. The first was Soliman Gilany, who was the Imam of the Mosque at Bathurst. This involved him being the Muslim chaplain for the gaols at Bathurst and Lithgow. He first met Jamal in mid 2006 when he was at Lithgow gaol. He used to go to the gaol on a weekly basis. He saw Jamal over a period of about two months in the first instance, and then later about once a week for a further six months. The last time he saw Jamal was in late 2007.

Mr Gilany said that he had "tested" Jamal on occasions and had concluded that he held moderate views as a Muslim. He said that he could not detect any hatred towards Australia in him and that Jamal was more concerned to look after his mother. He said that Jamal did not express any extremist views to him. He thought that when Jamal was ultimately released into the community, he would not be any danger or risk to the safety of the public. When cross-examined by the Crown, Mr Gilany said that he accepted what Jamal had told him that he did not buy chemicals and did not have bad intentions.

The second witness was a friend of Jamal and a Christian. He said that Jamal was a "good guy" and that he had never said anything to him about a hatred of Australia. He said that they had never talked about religion and that he was very surprised when Jamal was arrested.

The third witness was Jamal's brother, Abdul. He was employed as a project manager. He confirmed that Jamal was very religious and that he prayed with him when he was with him. He said that his brother did not express any extremist views to him in 2005. He was shocked when he heard that his brother had been arrested in December of that year and could not believe that his brother "would do anything like that". He confirmed that the family was very close to Jamal and that they would support him when he was released.

Whealy J set out his conclusions in relation to that evidence as follows: "162 There are two points I need to make in relation to the evidence tendered on the offender's behalf. First, I accept that there is sufficient confirmation of the history of the offender's background and upbringing to enable me to accept it as reliable. Secondly, I bear in mind that Jamal has not given evidence before me and the present state of his mind has not been explored or tested in any reliable way. The evidence which I have summarised purports to give indications, one way or another, whether Jamal had espoused jihadist sentiments and whether he poses a risk or not in terms of recidivism in relation to terrorism offences or, for that matter, criminal behaviour generally. It purports to examine his actions and motives in ordering chemicals. The Crown has made the point that the offender was not called to give evidence during the sentence hearing. This is a valid point. In my view, little weight can be given to statements of a self-serving kind in circumstances where the offender has not himself given evidence of his present state of mind. For that reason, the statements need to be treated with a considerable degree of caution (R v Qutami [2001] NSWCCA 353). Indeed, the brief and rather gentle cross-examination of Imam Gilany shows clearly how impressions may be gained by a witness, even an honest witness, when a degree of vigorous probing has been absent from his questioning of an offender."

Whealy J made these findings: "163 I turn now to consider the level of criminal culpability of Omar Jamal. Once again, this is primarily determined by the fact that the jury's verdict requires a finding that he voluntarily entered into the criminal conspiracy to do acts in preparation for a terrorist act or acts. I am satisfied beyond reasonable doubt, as were the jury, that Jamal did so. ... 166 I am satisfied beyond reasonable doubt that on 28 September 2005 Jamal attended Auto King with Hasan and they ordered: - (i) 10 x 20 litre drums of 45% strength sulphuric acid; (ii) 5 x 10 litres of distilled water; and (iii) 12 x 1.5 litres of distilled water. 167 A deposit was paid by Mr Hasan and, at the request of Mr Hasan, the false name phone 'George Markis' was activated to be used in connection with the chemical transactions. Between 28 September and 13 October 2005 on a number of occasions Jamal attended Auto King enquiring about the order. The distilled water was collected but, as it happened, the chemicals were not. 168 I am further satisfied beyond reasonable doubt that, at the behest of Hasan, Jamal attended Chemical Cleaning Solutions on 28 September 2005 and ordered: (i) 200 litres of 98% methylated spirits; (ii) 50 litres of hydrochloric acid; (iii) 25 kilograms of citric acid, and (iv) 20 litres of glycerine. 169 A deposit of $150 was paid over by Jamal. The money, it seems, had been given to Jamal by Hasan. It is not known where Hasan obtained the cash. Jamal gave a false name at the time of making the order. These chemicals were never collected, although the reason for that is not clear. I am satisfied beyond reasonable doubt that on 6 October 2005 Jamal attended Peter's Hardware at Greenacre. Once again, this was done at the behest of Hasan to enquire about an order for acetone which had been placed by Hasan on 28 September 2005. Once again Jamal gave a false name 'George' and supplied the 'George Markis' telephone contact number. Jamal did not collect the acetone but referred the matter to Hasan, who himself, collected it on 22 October 2005. 170 Finally, I am satisfied beyond reasonable doubt that Jamal and another (unidentified) male attended Auto King on 13 October 2005. This was to pick up the distilled water and the sulphuric acid. The distilled water was collected and the two men were then directed to the suppliers Autoquip to collect the acid. Jamal and the other man, accompanied by an employee of the retailer, then attended the supplier Autoquip to collect the 200 litres of sulphuric acid. The sulphuric acid, however, was not collected on that day, although the reasons for this are not clear. It seems that the sulphuric acid was never collected. Later that day, Jamal took the distilled water he had picked up to Hasan and gave it to him. 171 Consistently with the jury's verdict, I am satisfied beyond reasonable doubt that Jamal held each of the intentions necessary to demonstrate that the agreement into which he had entered related to doing acts in preparation for a terrorist act or acts. I am further satisfied that his motivation for joining the conspiracy was an effort to protest, through a terrorist act, Australia's involvement in the war upon Middle Eastern nations. It was to intimidate the public and, in turn, the Government of Australia so as to bring about a change in governmental policy towards the Muslim situation overseas. I cannot be satisfied beyond reasonable doubt that Jamal's intentions were to cause death or serious injury to members of the public but as the chemicals were plainly designed to be part of an explosive or explosives, there is no doubt, that, at the very least, his intention was that there would be serious damage to property, carrying with it the possible risk of death or serious injury to civilians."

A disputed fact was whether Jamal consciously withdrew himself from an active role in the conspiracy on 13 October 2005. On that issue, Whealy J concluded: "173 ... I cannot be satisfied, even on the lower standard of the probabilities, that Jamal consciously withdrew from collecting any further chemicals or, if so, why that was done. I accept that he used his false name mobile phone in a manner that was by no means covert, indeed the very opposite. I accept that he did not appear to have any connections with Abu Nasr Benbrika over the two days mentioned earlier. I accept also that certain material was deleted from his computer prior to 8 November 2005, although I note that the CDs containing the deleted material were retained at his home. There is no evidence to suggest that he was involved in the covert meetings organised in late October and early November 2005. While I could not be satisfied beyond reasonable doubt that he was directly involved in the concealment activities, it remains the position that his fingerprints were found on two items in FDT-113, a vehicle obviously used to bury and conceal items collected in relation to the conspiracy. His DNA was found on a sleeping bag in Musso ATE-40N, the vehicle found in early 2006 which was also plainly used in the concealment process. No explanation or evidence has been given about either of these matters. 174 Looking at all these matters overall, while I accept that Jamal was not involved in the purchasing or collection of chemicals after 13 October 2005, I am not satisfied, even on the balance of probabilities, that he had withdrawn from the conspiracy as from that date. I am satisfied beyond reasonable doubt that he remained a participant in the conspiracy until 8 November 2005, although I accept that the conspiracy came to an end either on, or shortly after that date. I accept that there was no relevant inculpatory conduct between his initial arrest on 8 November and his final arrest on 21 December 2005."

The second disputed fact was whether Jamal had abandoned his extremist convictions. The findings on that issue by Whealy J were: "175 ... I am not persuaded, even on the lower standard of the balance of probabilities, that Jamal's commitment to extremist ideology and actions had ceased as at 13 October 2005. ... 178 Regrettably, I must conclude that I can find no remorse or contrition on the part of the offender Jamal. I can find no acknowledgement by him of the wrongfulness of his actions or acceptance by him of responsibility for what he has done. With the same sense of regret, since he is a young man with no real criminal history, I find it difficult to assess otherwise than that his prospects of rehabilitation are not good. It may be, with the passing of the years, that he will come to acknowledge his responsibility in relation to the offence for which he has been convicted. But at the moment, I see little prospect of it. I take into account his youth and the conditions of his incarceration to date. I take into account the difficult time he will have in prison as a consequence of his classification as an 'AA' offender. I accept, so far as it can be ascertained, that he was lower in the hierarchy than the other men. He was not, on the probabilities, a co-ordinator and his actions were taken at the behest of others. I accept his involvement came about because of his involvement with men who were older and more senior than he. Nevertheless, Jamal had deliberately thrown his lot in with those men and it is not surprising that they were able to persuade him to join the enterprise. In my view, he did so willingly and because of the extremist views and convictions he had embraced. He was committed to the outcome of the enterprise. He shared the views of the others. His role in the conspiracy was important because he was, as Mr Scragg's submissions noted, a valuable asset due to his non-descript appearance, his youth, his Australian accent and apparently affable manner. In addition, he was not subject to the same level of surveillance to which other members of the conspiracy had been exposed. ..."

Jamal submitted that Whealy J had erred in his finding as to his prospects of rehabilitation in four respects.

The first of these was based on a comparison of Whealy J's findings in relation to prospects of rehabilitation in relation to the other conspirators. Jamal submitted that in respect of the other conspirators, his Honour made a positive finding that their prospects of rehabilitation were poor. In his case, the finding was equivocal in that his Honour found at [178] RoS: "That his prospects of rehabilitation are not good." He submitted that this more favourable finding was changed at [180] RoS when his Honour said: "180 ... While I have determined that the prospects of rehabilitation are poor in the case of each offender ...". He submitted that there was no reason given for that change in approach, but the effect was that the co-conspirators, who were held to be more culpable and more strident in their fundamentalist views than him, received lengthier parole periods.

Jamal submitted that the second error in relation to Ground 9 was Whealy J's conclusion that a more favourable determination as to the prospects of rehabilitation could only be made if he gave evidence on oath as to remorse. He submitted that this was a wrong approach because findings favourable to rehabilitation could be made without such a direct expression of remorse. He referred to cases where good prospects of rehabilitation had been found despite no acknowledgment of guilt or of remorse. Jamal submitted that the evidence of the Imam should not have been rejected solely on the basis that he had not acknowledged the verdict of the jury.

Jamal submitted that the importance of the evidence of the Imam was that it showed that he had been engaged in listening to the teachings of a moderate Imam and from this an inference favourable to good prospects of rehabilitation could and should have been drawn.

Jamal submitted that Whealy J erred in a third way by failing to take into account his youth at the time of the offending and in failing to focus more on his prospects of rehabilitation than on punishment. Jamal contrasted his Honour's approach with that of Bongiorno J when dealing with Joud in R v Benbrika [2009] VSC 21; 222 FLR 433 at [117], where Bongiorno J said: "117 Joud is still young. He is entitled to have his youth taken into account in having sentences fixed in this case. His youth is relevant to the possibility of his rehabilitation."

Jamal submitted that the fourth error in relation to Ground 9 was the failure by Whealy J to acknowledge and give appropriate weight to other pieces of evidence which suggested that he did have good prospects of rehabilitation, i.e. that he had not embarked upon a process of desensitisation through the watching of violent videos such as beheadings, that he was "groomed" from a young age by older men whom he came to respect, that before and after his participation in the conspiracy he had a friendship network outside the Muslim community and that during the currency of the conspiracy, and before embarking upon his overt acts, he was heard coming to the defence of Mr Howard in a conversation with Moustafa Cheikho.

There is no substance in the first purported error sought to be identified in support of Ground 9. It is an argument based entirely upon terminology and ignores the reasoning behind the finding. It is apparent from a proper reading of [178] RoS that Whealy J's finding that Jamal's prospects of rehabilitation were "not good" was not equivocal. Rather, it was used in the same way as a finding that his prospects of rehabilitation were "poor". In relation to the length of the parole period, his Honour consistently imposed a non-parole period of 75 percent in respect of each of the conspirators, which included Jamal. The fact that the parole period for Jamal was less than that of the other conspirators was simply indicative of the fact that the head sentence imposed on him was less than that imposed on the other conspirators. No error has been demonstrated in this approach.

Whealy J was justified in concluding that the failure of Jamal to give evidence meant that he had not discharged the onus of establishing, on balance, that he had given up the extremist views which he had previously held. As his Honour pointed out, Jamal's failure to give evidence meant that there was no persuasive evidence before the Court in the sentencing proceedings as to his state of mind at that time. The evidence of the Imam and Dr Lennings did not overcome that problem. This is particularly so when Jamal had denied to them that he had committed the offence. In those circumstances, it was not surprising that the Imam gave favourable evidence on the question of rehabilitation because he believed what he had been told.

In the circumstances, Whealy J was entitled to dismiss as self-serving the denials by Jamal to the Imam and Dr Lennings, particularly when such denials traversed the verdict of the jury. Because of the nature of this offence and the importance of its mental element, it was important that his Honour have before him reliable evidence before he could make a favourable finding as to rehabilitation.

On this issue, Whealy J referred to R v Qutami [2001] NSWCCA 353; 127 A Crim R 369. In that judgment, Smart AJ made an observation which has been endorsed by this Court in subsequent judgments: "58 There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements. 59 There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken, great caution will be exercised in respect of the weight, if any, given to those statements." In the same case, Spigelman CJ said: "79 I agree with the observations of Smart AJ as to the limited weight that ought to be given to self-serving, untested statements made to experts which are tendered in sentence hearings."

Because of the denials made to the Imam and Dr Lennings, and because of the failure of Jamal to give evidence, Whealy J was entitled to make the finding which he did. No error has been demonstrated.

The third complaint by Jamal to the effect that Whealy J discounted youth as a factor relevant to his prospects of rehabilitation is not made out. On the contrary, his Honour made a finding favourable to Jamal based on his youth when he said: "I accept his involvement came about because of his involvement with men who were older and more senior than he". It cannot be said that his Honour ignored Jamal's youth. He did take it into account in a way favourable to Jamal, but he was not able to do so on the issue of rehabilitation. On that issue, it was irrelevant.

In the absence of reliable evidence that Jamal had withdrawn from his extremist beliefs, the fact of his youth could have little weight in determining his prospects of rehabilitation. On that same issue, no assistance can be gained from the sentence imposed on Joud. The circumstances and nature of offending is quite different, as is the maximum penalty.

No error has been demonstrated.

In relation to the last matter relied upon by Jamal in relation to Ground 9, it cannot be said that Whealy J did not take into account evidence relevant to rehabilitation. On the contrary, his Honour carefully set out and assessed the evidence on the issue before reaching his conclusion. As already indicated, the evidence of consultations with a moderate cleric was of little value when it was apparent that what he was telling that cleric was inconsistent with the jury verdict.

Ground 9 has not been made out.

Jamal submitted that by reference to parity principles, there were significant differences between his offending and that of the other conspirators. He submitted that there was no evidence that he had engaged in the concealment process. The examination of his computer showed only occasional browsing of extremist documents. Finally, the length of time during which he participated in the conspiracy was significantly less than that of the other conspirators. He referred to not attending the bonding camps, not being involved in obtaining ammunition and not attending meetings with Benbrika in October and November 2005 as also being distinguishing features. He submitted that these differences were not adequately reflected in the sentence which he received.

Jamal submitted that the length of time during which participation in the conspiracy took place was regarded as important by Bongiorno J in R v Benbrika [2009] at [235], where his Honour said: "235 In Haddara's case the fortuitous circumstance that he was arrested only weeks after he joined and was thus unable to contribute very much to the organisation does have the effect of diminishing his criminality when it is compared to that of a longer serving member. Undoubtedly, as the prosecutor argued, had he not been arrested he would have been a very valuable and perhaps very dangerous member into the future. The fact that that did not occur must enure to his benefit on sentence."

Jamal submitted that it was legitimate to have regard to the sentence imposed on Benbrika (15 years), which was less than his sentence, even though more serious findings had been made against Benbrika to the effect that he had convinced "impressionable prospective members of the organisation to the way of violent jihad and his moral culpability in fomenting the misconceptions and hatred which sustained the interests of the organisation and his activities were at the high end of the scale of seriousness": Benbrika v R [2010] at [564].

Fundamental to this ground of appeal is Jamal's submission that many of the specific acts of the conspirators, which went to the objective seriousness of the offence, could not be attributed to him. The difficulty with the submission is that it fails to have regard to the nature of the offence for which he was sentenced, i.e. conspiracy to do an act in preparation for a terrorist act or acts. The findings as to the objective seriousness of the conspiracy, which themselves are not challenged, relate to the conspiracy to which he was a party. Jamal was not being sentenced for the individual acts which he undertook but for his participation in that conspiracy. As Whealy J noted in relation to all of the appellants, "The level of criminality involved in the present conspiracy was far more substantial than the criminality involved in the individual acts of each offender". At [64] RoS his Honour set out the five reasons why this was so (see [636] above). No part of that reasoning has been challenged by the appellants.

Moreover, there was evidence which linked Jamal to such matters as the concealment process (his fingerprints on items in the Musso FTD-113, a vehicle which was used to bury and conceal items in relation to the conspiracy, and his DNA was found on a sleeping bag, which was in the Musso ATE-40N which was also used in the concealment process). These were some of the matters which Whealy J took into account when rejecting Jamal's submission that he had withdrawn from the conspiracy as of 13 October 2005.

That Jamal joined the conspiracy after the other appellants does not greatly affect the objective seriousness of his participation. Whealy J was clearly aware of the fact that he had joined after the other conspirators. The facts are quite different to those considered in relation to Haddara. Haddara was convicted of being a member of a terrorist organisation but had become a member only weeks before the arrests. Given the nature of that offence, it is easy to see why the length of his membership was regarded as a discounting factor.

It should also be noted that Haddara had not been able to contribute much to the organisation which he had joined. In contrast Jamal, although he joined later than the other conspirators, had made a significant contribution to the conspiracy. He was involved in the ordering of chemicals and the later attempts to collect them from Auto King and Chemical Cleaning Solutions. Those activities were undertaken with the use of false names and telephones in false names. He was, as his counsel accepted, "a valuable asset" to the conspiracy.

The reliance on the sentence imposed on Benbrika does not give rise to issues of parity and is unhelpful. Most obviously, Benbrika was not a co-offender. He was convicted of different offences and the factual background to the offending in his case was significantly different to that of Jamal. An important factor which Jamal had to accept, but which was absent in the case of Benbrika, was that this conspiracy was well underway with action being undertaken to prepare for a terrorist act.

Whealy J was aware that Jamal's position was at the lower end of the hierarchy in the conspiracy. This and the length of time during which he participated in the conspiracy constituted the difference between him and the other conspirators. The difference was not a significant one and was adequately reflected by the difference in the sentences which his Honour imposed. Despite those differences, as a member of the conspiracy, his criminality remained at a significant level. There was no proper basis for Jamal having a justifiable sense of grievance. This ground of appeal has not been made out.

Leave to appeal should be granted but the appeal dismissed.

None of the grounds of appeal in the Applications for Leave to Appeal Against Sentence has been made out. The orders of the Court are: Mohamed Ali Elomar Abdul Rhakib Hasan Khaled Cheikho Moustafa Cheikho Mohammed Omar Jamal