Khayat v R

1. [1]

   HARRISON CJ at CL: I have had the considerable advantage of reading the thorough and comprehensive judgment of Wright J, with which I agree. His Honour’s analysis with respect to the first ground of appeal succinctly and clearly exposes the distinction between those cases in which an extended unanimity direction is required and those cases, of which the present case is an example, in which it is not. The so-called bomb plot and the gas plot were no more than particulars of the alleged conspiracy and were not essential ingredients of the charged offence. It is understandable that no such direction was sought at trial.

2. [2]

   I also note that his Honour’s review of the directions given by Adamson J (as her Honour then was) for the purposes of explaining the parties’ respective contentions with respect to the first ground of appeal has also served further to emphasise the clarity and commendable economy with which her Honour directed the jury on this issue at trial. Although no challenge was made in this Court to her Honour’s directions in terms, save for the asserted failure to give a direction that was not asked for, it is wholly unsurprising that no criticism was otherwise levelled at the way in which her Honour summarised the parties’ respective contentions to the jury.

3. [3]

   WRIGHT J: By a notice of appeal filed on 14 February 2025, the applicant, Mahmoud Khayat, seeks to appeal against his conviction for conspiring to do acts in preparation for, or planning, a terrorist act or acts.

Procedural background

1. [4]

   Between 20 August and 19 September 2019, the applicant was tried on an indictment containing one count, which alleged that the applicant:

2. [5]

   On 19 September 2019, the jury returned a verdict of guilty. On 17 December 2019, the applicant was sentenced by the trial judge, Adamson J, to imprisonment for 36 years with a non-parole period of 27 years expiring on 28 July 2044: R v Khaled Khayat; R v Mahmoud Khayat (No 14) [2019] NSWSC 1817.

Steps taken in relation to an appeal

1. [6]

   The applicant instructed his then solicitors to file a notice of intention to appeal and to obtain a merits advice but these solicitors ceased to contact him and he was unaware of what occurred, if anything.

2. [7]

   It appears that, by early 2023, any notice of intention to appeal that may have been filed had ceased to have effect.

3. [8]

   On 13 February 2023, the applicant retained his current solicitors and requested a transfer to them of his legal aid grant in relation to an appeal. On 27 March 2023, the legal aid grant was transferred.

4. [9]

   Between 27 March 2023 and 22 May 2023, the applicant conferred with his solicitors and provided such documentation as he held.

5. [10]

   Between 22 May 2023 and 19 February 2024, the applicant’s solicitors took steps to obtain copies of the transcripts of the trial, the exhibits and other relevant documentation.

6. [11]

   In Mr Del Monte’s affidavit of 14 February 2025 it is stated that on 19 February 2024, a notice of intention to appeal with supporting affidavit was filed but the Court’s electronic records in JusticeLink do not include a record of such a document being filed on or about that date.

7. [12]

   Between 2 April 2024 and 7 August 2024, the applicant’s solicitors obtained copies of the outstanding documentation from the trial.

8. [13]

   In about late August or early September 2024, a brief was prepared to obtain a merits advice from Mr Odgers of Senior Counsel.

9. [14]

   On 14 February 2025, a notice of appeal was filed together with an affidavit of Luke Del Monte providing information as to the steps taken by his firm after 27 March 2023 in relation to the appeal.

The appeal

1. [15]

   In the circumstances, the notice of appeal was filed after the expiry of the applicable period for filing specified in r 3.5(2) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Criminal Appeal Rules). Accordingly, under r 3.5(5) of the Criminal Appeal Rules, the appeal or application for leave to appeal may be made only with the leave of the Court.

2. [16]

   The grounds of appeal to be relied on if leave is granted to make the appeal or application for leave to appeal are:

3. [17]

   In addition to leave under r 3.5(5) of the Criminal Appeal Rules, the applicant also requires:

   1. (1)

      leave to appeal under r 4.15 of the Criminal Appeal Rules in respect of the first ground of appeal as objection was not taken at the trial to the omission to give an extended unanimity direction; and

   2. (2)

      leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) in respect of the second ground of appeal, since it involves a question of mixed law and fact.

4. [18]

   It is appropriate to deal with the questions of leave to appeal when considering each ground.

5. [19]

   The nature of the grounds of appeal requires a review of the Crown case at trial, the matters in issue and the directions of the trial judge.

The Crown case

1. [20]

   The most pertinent aspects of the Crown case include the following. By 2014, one of the applicant’s brothers, Tarek Khayat, had moved to Syria with his sons and nephew to join in Islamic State’s activities as an armed opposition group in Syria fighting against the government regime of Bashar al-Assad with an objective of establishing an Islamic Caliphate in the region. Tarek ultimately became a sheikh in that organisation. During the relevant times, Tarek communicated with the applicant and another brother, Khaled Khayat. These communications included Tarek sending his brothers sermons he delivered in Syria concerning the religious and political objectives of Islamic State. As part of this, Tarek said, “Islamic State foster[s] the belief that Muslims who are unable to travel to places where violent jihad is taking place have a responsibility to conduct terrorist acts in their own countries”.

2. [21]

   The Crown case was largely circumstantial and involved the contentions that from about 20 January 2017, the applicant and Khaled entered into an agreement with Tarek and “divers others”, to commit acts in preparation for, or planning, terrorist acts, motivated by the religious and political objectives advanced by Islamic State.

3. [22]

   On the Crown case, the acts in preparation for terrorist acts involved, inter alia: the applicant and Khaled making arrangements for explosives to be sent from Turkey; the applicant and Khaled making arrangements to collect and collecting the explosives; the applicant and Khaled making arrangements to buy timers; and, another brother, Amer, taking steps to carry the explosives in a meat grinder or mincer with a timer on board an Etihad flight from Sydney to Lebanon intending to detonate the explosives at some point mid-flight. This was referred to at trial as the “bomb plot”.

4. [23]

   The specific circumstances relied on in relation to the bomb plot included that on 21 January 2017, Tarek communicated with the applicant and requested that he ask Khaled to contact him urgently. The next day, 22 January 2017, Khaled sent a message to the applicant asking for the correct name and address of the applicant’s brother-in-law, Abdul-Karem Merhi. The applicant asked his wife, who was Abdul-Karem’s sister, to assist with this. The purpose of this was contended to be that the package containing explosives was to be sent from Turkey to Abdul-Karem’s address in Wiley Park to avoid incriminating the conspirators themselves.

5. [24]

   On 13 April 2017, a parcel left Turkey for Abdul-Karem’s address. The waybill named him as the consignor and included an email address which, on the Crown case, the applicant had set up for that purpose. The package was labelled to indicate that it contained a “welding machine”. It was the Crown case that Tarek or one of his associates, referred to by the parties and in the evidence as “the Controller”, sent a photograph of the waybill via Telegram to Khaled and the applicant.

6. [25]

   On 17 and 18 April 2017, attempts to deliver the package to Abdul-Karem’s address were unsuccessful, and at that time the applicant conducted searches of the DHL website using the tracking details for the package.

7. [26]

   On 18 April 2017, the applicant made a call from a public telephone to DHL inquiring about the status of the package falsely identifying himself as Abdul-Karem. During that call the applicant made arrangements for a further attempt at delivery to Abdul-Karem’s house. On 19 April 2017, the delivery was made. Khaled and the applicant collected the package after its delivery and took it back to Khaled’s residence.

8. [27]

   On 21 April 2017, Khaled told the applicant, “come past so we can open it” to which the applicant responded, “did he speak with you”. Later that day, Khaled sent an image to Tarek of a copper coil with wiring attached to it. The following day the Controller sent an audio message to Khaled about wiring up the explosive.

9. [28]

   Between 21 and 24 April 2017, the applicant and Khaled discussed the purchase of a timer and the applicant made arrangements for one to be bought from eBay. Khaled subsequently conducted 135 searches online regarding the use of timers and sent several images to Tarek and the Controller. Khaled ultimately purchased a different timer that was used with the explosive device.

10. [29]

    On 13 June 2017, Khaled received a message via Telegram with instructions from Tarek or the Controller in the form of a video with Arabic subtitles about how to connect the bomb to a power source. The video was accompanied by a soundtrack which included the words "Islamic State has risen, by the blood of the righteous, Islamic State has risen, by the jihad of the pious… By men who divorced the physical world and won eternal life".

11. [30]

    On around 1 July 2017, the applicant asked Amer to take a photo of a silver suitcase, which the applicant then forwarded to Khaled. A silver suitcase was ultimately taken to the airport by Amer.

12. [31]

    On around 14 July 2017, Khaled took a photograph of the explosive device secreted inside a meat grinder and positioned in place with silicon. The Controller wrote to Khaled, "You should not have sent me a picture of the item you want to send brother". In addition, messages were exchanged between them concerning the appropriate timing settings for the timer and wiring connections for the device.

13. [32]

    Between 14 and 15 July 2017, the applicant and Khaled received audio messages of Tarek’s sermons.

14. [33]

    On 15 July 2017, CCTV footage from Sydney International Airport showed the applicant, Khaled and Amer arriving in a black Toyota Corolla. Upon entering the terminal, Amer was advised by check-in staff that he needed to repack his bags because they exceeded the weight limit. Khaled and Amer returned to the car where the applicant was waiting and, on the Crown case, removed the meat grinder containing the bomb from the luggage. Amer later boarded the flight.

15. [34]

    On 17 July 2017, the applicant told Khaled that he himself had booked a flight to Lebanon in September. Khaled replied, “Okay good, then I will send the machine with you hhhhhhh”.

16. [35]

    On 29 July 2017, a search warrant was executed on Khaled's residence. During the search an electronic timer and circuit were located. Also found was an item wrapped in wiring and covered in white wrapping also wrapped with other wires. A subsequent x-ray of the device revealed a detonator. Deconstruction of the device revealed a high powered military explosive material. The plastic bags containing the detonator device were examined. The applicant's fingerprints were on the bags.

17. [36]

    Also on 29 July 2017, a search of Abdul-Karem’s house located a meat grinder. Testing of white polymeric material found on the detonator device could not distinguish that material from material also found in the meat grinder. Analysis of the outer housing of the meat grinder revealed the fingerprints of both Khaled and the applicant. The applicant's fingerprint was also located on the instruction manual for the meat grinder found in the bin of the Cleveland Street residence where the applicant’s wife’s parents lived. Yellow tape found at those premises matched the tape on the detonator located at Khaled’s premises. A hand drawn depiction of the wiring of a timer, similar to that located in Khaled's garage, was found in a white Holden Astra registered to Khaled.

18. [37]

    On the Crown case, during the same period the acts in preparation for terrorist acts also involved the applicant and Khaled preparing and testing a poisonous gas designed to kill people, referred to at trial as the “gas plot”.

19. [38]

    The specific circumstances relied on in relation to the gas plot included that on 22 July 2017, the Controller sent a message to Khaled, "regarding the … powder we need to do a trial". Khaled responded that he had burned the powder.

20. [39]

    On 24 July 2017, there were further discussions about the preparation and testing of poisonous gas, with the Controller stating, "the main principle is the production of a gas with certain thickness in a place of known size enough to kill whoever is inside it" and suggesting trying it in a room with a rabbit or a mouse.

21. [40]

    In the early hours of 29 July 2017, Khaled’s underground garage was subject to a covert search by police. During that search, police located a “yellowy-green coloured powdery substance mixed with a metallic substance” in resealable bags.

22. [41]

    On 29 July 2017, Khaled sent a message to the Controller: "Rejoice brother, God willing, I will let you know the results." Later that morning, the applicant sent an audio message to Khaled saying, "I am just on my way to pick up Jalal and then will go to you straight away, God willing." On the same day, at the applicant's residence, Khaled used a ceramic tile as a base to burn chemicals on the applicant's barbecue. At about this time, a neighbour observed the applicant with someone else working at the back of the unit on a car, in the car park area. The applicant spoke to the neighbour and asked him for a wire, and he gave the applicant an electrical wire. Another neighbour noticed that the men in the car park area of the applicant's property were having a barbeque. He observed a white plume of smoke bellowing up and over to his side of the property. The smoke looked like a nice, thick, white plume, barbeque-type smoke. It had a nice, sweet smell. It did not smell of burning plastic, chemicals or metal - it was totally different.

23. [42]

    Also on 29 July 2017, at 2.58 pm and 2.59 pm, Khaled sent two different photos of powder to the Controller with the message, "This is during combustion and after combustion". At 3.00 pm, Khaled sent the Controller a message, “Brother thank God things are good”.

24. [43]

    A document seized from Khaled and translated into English contained a chemical equation for the gas in question. In the concentration described in that document, inhalation would cause instant death.

25. [44]

    The Crown case against the applicant also relied on answers given by the applicant when he was interviewed by police after his arrest which the Crown was permitted to rely upon as being lies amounting to evidence of consciousness of guilt. Those asserted lies were the following: [1]

    1. (1)

       that the applicant lied by stating that he did not know whether Khaled was in contact with Tarek;

    2. (2)

       that the applicant lied by stating that he did not know that Khaled had bought a welding machine until he came to his house on the day they collected it from Abdul-Karem; and

    3. (3)

       that the applicant lied by stating that he was surprised by Amer and Khaled coming past Cleveland Street on 15 July 2017.

26. [45]

    The Crown case also involved evidence which indicated that the applicant was a supporter of ISIS.

The defence case and issues at trial

1. [46]

   The applicant’s written submissions on appeal included that he was interviewed after he was arrested and denied any knowledge of “any conspiracy to commit a terrorist act” and thus denied joining any such conspiracy. [2] He testified at trial, repeating that denial. He said he knew nothing of Khaled’s plans. His evidence was that any acts he did which provided assistance to Khaled in carrying out those plans were performed out of “filial obligation” ignorant of Khaled’s ultimate purpose. In addition, the applicant and his wife gave evidence explaining some of the circumstances relied on by the Crown and Khaled gave evidence that the applicant was not involved in the conspiracy.

2. [47]

   The applicant’s written submissions on appeal set out in summary what was said not to be in issue at the trial and identified the issue that was in dispute, in the following terms: [3]

3. [48]

   It is useful to pause at this point to note that the applicant’s formulation of what was in dispute at the trial, namely whether he was a party to “the plan to commit the terrorist act or acts” is not an entirely accurate reflection of the actual charge against the applicant. The applicant was not charged with conspiracy to “engage in a terrorist act” contrary to ss 11.5(1) and 101.1(1) of the Criminal Code (Cth). The charge which the applicant faced was conspiracy “to do acts in preparation for, or planning, a terrorist act (or acts)” contrary to ss 11.5(1) and 101.6(1) of the Criminal Code. By virtue of s 101.6(2)(b), that conspiracy was not required to relate to acts “done in preparation for, or planning, a specific terrorist act”.

4. [49]

   Understood in light of the charge against the applicant and the defence closing address, [4] the primary issue at the trial was whether the applicant was a party to the agreement that was accepted by the defence to have existed between Khaled, Tarek and others, to do acts in preparation for or planning a terrorist act or acts.

The trial judge’s relevant directions

1. [50]

   The trial judge’s directions concerning the elements of the charge each of which the Crown was required to prove beyond reasonable doubt were given orally, and in writing, MFI 12.

2. [51]

   MFI 12 relevantly included the following:

3. [52]

   The trial judge’s oral directions concerning the elements of the charge included:

4. [53]

   In summarising the Crown case, her Honour also touched upon the relevant elements of the offence as follows:

5. [54]

   The trial judge’s oral directions in relation to the Crown case concerning the overt acts element also included the following:

6. [55]

   In summarising the accused’s case, the trial judge noted as follows:

7. [56]

   Finally, the trial judge mentioned a number of matters relating to the jury’s deliberations including, in relation to unanimity, the following:

8. [57]

   Against that background, I turn now to consider each ground of appeal in turn.

Ground 1

1. [58]

   The first ground of appeal was that the trial judge erred in failing to give an extended unanimity direction.

2. [59]

   The applicant submitted the Crown case was that the applicant was a party to a conspiratorial agreement to do acts in preparation for, or planning, a terrorist act or acts and that the relevant terrorist act or acts was the bomb plot, or the gas plot or both. It was contended that, in these circumstances and in light of the summing up, “the jury would have understood that, to find the applicant guilty, they would have to at least be satisfied beyond reasonable doubt that he was a party to the ‘bomb plot ‘or a party to the ‘gas plot’”. [5] The defence case was said to be that he was a party to neither plot. In these circumstances, it was submitted that the standard unanimity direction given at par 316 of the summing up was inadequate and an extended unanimity direction was required.

3. [60]

   The applicant drew attention to the circumstances in which an extended unanimity direction was said to be required in authorities such as R v Walsh [2002] VSCA 98 (Walsh) at [57]; 131 A Crim R 299 and Ribbon v The Queen (2019) 134 SASR 328; [2019] SASCFC 130 at [260]-[261]. It was submitted that since the bomb plot and the gas plot were left to the jury as alternate bases for finding a terrorist act in the present case, different jurors may have taken different paths to the conclusion that the applicant was guilty of the offence. Thus, it was contended that without an extended unanimity direction, it was “uncertain whether the jury were unanimous that the [applicant] was a party to at least one of the plots relied upon by the Crown”. [6]

4. [61]

   In these circumstances, it was submitted that the jury should have been directed as follows: [7]

5. [62]

   The applicant further contended that even though trial counsel did not seek such a direction, if an extended unanimity direction was required, leave to appeal on this ground should be given. Furthermore it was submitted that the absence of a necessary direction meant that it could not be assumed that the jury had discharged its functions to reach a unanimous verdict as required. It was then said to follow that the way in which the jury was directed was “apt to prevent the performance by the jury of its function” and, without more, this resulted in a substantial miscarriage of justice.

6. [63]

   The Crown submitted that having regard to the nature of a conspiracy charge, the distinction between a preparatory act and a terrorist act or acts and in light of authority, the first ground of appeal should be rejected.

7. [64]

   The Crown referred to the physical and fault elements of an offence of conspiracy under s 11.5(1) and s 5.6(1) of the Criminal Code and the matters that are required to be proved for a person to be found guilty of conspiracy, under s 11.5(2)(a), (b) and (c), as explained in Director of Public Prosecutions (Cth) v Kola (2024) 279 CLR 104; [2024] HCA 14 (Kola) and R v LK (2010) 241 CLR 177; [2010] HCA 17 (LK). It was then contended that, although particulars of the conspiracy may be given, those particulars are not essential ingredients of the offence. Rather, the gist of the offence of conspiracy is an agreement to participate in organised criminal activity.

8. [65]

   The Crown then submitted that it is permissible to charge a single conspiracy to commit multiple preparatory acts including where the preparatory acts were directed to one or more terrorist acts. It was noted that conspiracy is a continuing offence and it remains a single offence notwithstanding that, during its currency, a number of identifiable and separate acts within its general purpose may be carried out. Furthermore, it was said that, given the preparatory nature of a conspiracy to do acts in preparation or planning for a terrorist act, it is not necessary to identify a specific target of or method of carrying out any terrorist act. This was also submitted to be supported by the terms of s 101.6(2) which provide that a person commits an offence under s 101.6(1), even if a person’s act is not done in preparation for or planning a specific, or more than one, terrorist act.

9. [66]

   The Crown submitted that an extended unanimity direction may be required in circumstances where various discrete acts are relied upon as proof and any one of them would entitle the jury to convict and if those discrete acts go to the proof of an essential ingredient of the crime charged. This was said to be because in that situation the jury could not convict unless they were agreed upon the act which constituted that essential ingredient. This was contrasted with the situation where the same body of evidence may be relied on for different outcomes on legal liability, for example, in the case of murder or manslaughter.

10. [67]

    Ultimately, it was submitted that whether an extended unanimity direction is required depends essentially upon the precise nature of the charge and the nature of the prosecution’s case. Authorities were cited for the proposition that an extended unanimity direction was not required in the case of a charge of conspiracy where the particulars of how the conspiracy was to be given effect to were not ingredients of the offence.

11. [68]

    The Crown submitted that, in the present case, the conspiracy alleged was to do an act or acts in preparation for, or planning, a terrorist act or acts and not a conspiracy to carry out either the bomb plot or the gas plot. Thus, the subject of the agreement was, not the bomb plot or the gas plot, but rather the doing of an act or acts in preparation for, or planning, a terrorist act or acts, particularised as those plots. The terrorist act or acts were submitted not to be part of the physical element of the offence. The terms of s 101.6(2)(b) and (c) were contended to support this approach.

12. [69]

    The Crown also submitted that the extended unanimity direction proposed by the applicant focused incorrectly on the bomb plot and the gas plot as essentially elements of the offence. The proposed direction was also said to be inconsistent with Walsh because the acts alleged were simply particulars, not discrete acts that would go to the proof of an essential ingredient of the offence charged.

13. [70]

    Furthermore, the Crown contended that the proposed direction was inconsistent with the nature of a conspiracy as a continuing and inchoate offence where the gravamen of the offending was the entry into the conspiratorial agreement and the doing of an overt act in furtherance of it and not the particularised terrorist acts to which the preparatory act might relate.

14. [71]

    For the reasons explained by Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ in Cheatle v The Queen (1977) 177 CLR 541; [1993] HCA 44, s 80 of the Constitution requires that a trial on indictment of an offence against ss 11.5(1) and 101.6(1) of the Criminal Code be by jury and that the jury’s verdict be unanimous. In general terms, unanimity requires each essential ingredient of the charged offence to be proved to the requisite standard to the satisfaction of each and every member of the jury. In the present case, there was no challenge to the directions given by the trial judge in respect of unanimity generally. Rather, the first ground of appeal involved the contention that a further, extended unanimity direction was required concerning the terrorist act or acts in relation to which the applicant was alleged to have conspired to do acts in preparation or planning. By failing to give such an extended unanimity direction, it was said the trial judge erred.

15. [72]

    It is to be accepted that generally each juror is not required to follow the same evidential route in reaching a verdict of guilty in order for there to be a unanimous verdict: AKB v The King [2024] NSWCCA 169 (AKB) at [58] (Gleeson JA with Walton J agreeing and Dhanji J agreeing in part). Where, however, having regard to the particular elements of the offence, the parties’ cases at trial and the evidence adduced, the jury is or may be presented with different factual routes or pathways to determine guilt, a direction may be required that the jury must be unanimous in finding which one of several particular facts occurred in order to establish the guilt of the accused for the offence charged: AKB at [58]; Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (Country Care) (2020) 275 FCR 342; [2020] FCAFC 30 at [76] (Allsop CJ, Wigney and Abraham JJ).

16. [73]

    The underlying justification for a requirement for an extended unanimity direction can be seen as arising out the need for certainty as to the basis on which an offender has been convicted given the requirement for unanimity as to guilt of the offence charged: Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 at [45] (Kiefel CJ, Bell, Keane and Edelman JJ). Put another way, an extended unanimity direction serves to avoid the risk that, without such a direction, different jurors might in effect convict an accused of different offences encompassed within a single count, as is implicit in the judgment of the English Court of Appeal in R v Hancock, Warner and Michael [1996] 2 Cr.App.R. 554 (Hancock) at 559 (Stuart-Smith L.J who read the judgment of the Court of Appeal).

17. [74]

    In considering whether an extended unanimity direction is required, a distinction is commonly drawn between cases involving alternative legal formulations of liability based on the same or substantially the same facts and cases which present alternative factual bases of liability: AKG at [59], Country Care at [77]. In the first type of case, the authorities establish that generally there is no need for an extended unanimity direction as any verdict of guilty will be unanimous for the offence even if the basis on which the accused is liable for that offence differs between jurors. In the second type of case, however, where there are alternative pathways or routes to a verdict of guilty some form of extended unanimity direction may be required in some instances. Otherwise, the jury may not be unanimous with regard to a specific offence.

18. [75]

    The principles relating to when an extended unanimity direction is required in the second type of case were addressed by the Victorian Court of Appeal in Walsh and have been accepted and applied in numerous cases: Country Care at [80] and the authorities there cited; AKB at [60] and [62] and the authorities there cited.

19. [76]

    In Walsh, Phillips and Buchanan JJA, with Ormiston JA agreeing, said at [57]:

20. [77]

    As this Court accepted in AKB at [64], this passage from Walsh, which reflected the comments by Lord Ackner in R v More (1988) 86 Cr App R 234 at 252, [8] emphasises that whether an extended unanimity direction is required in a case where a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict will depend on:

    1. (1)

       the precise nature of the charge and, in particular, its essential ingredients; and

    2. (2)

       the nature of the parties’ cases and the live issues that remain at the conclusion of the evidence.

21. [78]

    These two factors are of particular relevance in the present case and will be addressed in turn.

22. [79]

    In considering the significance of the essential ingredients in this context, the Victorian Court of Appeal in Walsh noted, by way of example, the different ingredients which must be proved in the case of a charge of obtaining property by deception by means of misrepresentation compared to the essential ingredients of a charge of conspiracy to defraud by dishonestly making false representations. In the former case, the making of a misrepresentation is an essential ingredient of the offence and it follows that the jury must be unanimous as to the misrepresentation made. Thus, if evidence of more than one misrepresentation is relied on by the prosecution, the jury must be unanimous as to which one or more of the misrepresentations was made and an extended unanimity direction in that regard is required. By way of contrast, in the case of conspiracy to defraud by making false representations, an agreement to make any particular representation is not an essential ingredient of the offence and, accordingly, the jury is not required to be unanimous as to whether there was an agreement to make one rather than another representation even if the prosecution relies on evidence of more than one representation being the subject of the agreement. In the latter situation, no extended unanimity direction is necessary or appropriate.

23. [80]

    Particulars of a charge may be a complicating factor in this context. In a case where various discrete acts are relied upon as proof and any one of them would entitle the jury to convict, particulars of the discrete acts would ordinarily be given in order to inform the defence of the nature of the case it was required to meet. The fact that certain acts are particularised in such a case does not, of itself, lead to the conclusion that an extended unanimity direction is required. If none of the particularised acts is an essential ingredient of the offence, there will generally be no uncertainty as to the basis on which the accused has been found guilty. Nor will there be a risk of different jurors convicting of different offences encompassed within the same count. Stuart-Smith LJ explained the relationship between particulars and essential ingredients of a conspiracy to defraud offence in Hancock at 559-560:

24. [81]

    Thus, in the case of a conspiracy to defraud by misrepresentation, although particulars of various misrepresentations which were the subject of the conspiratorial agreement may have been given and evidence of those misrepresentations relied on by the prosecution, an extended unanimity direction would not be required if those misrepresentations were not an essential ingredient of the offence. More specifically, such a direction would not be required where the essential ingredients of the offence did not include that the conspiratorial agreement involved making any particular misrepresentation.

25. [82]

    The question then arises whether this reasoning in relation to an extended unanimity direction in the context of a charge of conspiracy to defraud also applies in relation to a charge of conspiracy to do acts in preparation for, or planning, a terrorist act or acts contrary to ss 11.5(1) and 101.6(1) of the Criminal Code.

26. [83]

    Section 11.5 of the Criminal Code relevantly includes:

27. [84]

    The offence of conspiracy created by s 11.5(1) has a single “physical element”, as referred to in ss 3.1(1) and 4.1(1) of the Criminal Code, namely conduct that the accused conspired with another person to commit a non-trivial offence: Kola at [21] and LK at [141]. The “fault element”, as referred to in s 3.1(1), in respect of that physical element is intention, being the default element under s 5.6(1). Thus, the fault element is that the accused meant to enter into or adhere to an agreement to commit the relevant offence the subject of the conspiracy: Kola at [21].

28. [85]

    Section 5.2(1) and (3) of the Criminal Code establish that a person has “intention” as a fault element:

    1. (1)

       with respect to conduct, if the person means to engage in that conduct; and

    2. (2)

       with respect to a result, if the person means to bring it about or is aware that it will occur in the ordinary course of events.

29. [86]

    Section 11.5(2)(a) and (b) explain what it means to "conspire" as referred to in s 11.5(1). However, neither para (a), nor (b), nor (c) of s 11.5(2) is an “element” of the conspiracy offence created by s 11.5(1): Kola at [21].

30. [87]

    From this it follows that the essential ingredients (as opposed to “elements” as identified in the Criminal Code) which must be proved for a person to be found guilty of an offence of conspiracy under s 11.5 are:

    1. (1)

       The person entered into an agreement with at least one other party to do something that would amount to an offence of the type referred to in s 11.5(1);

    2. (2)

       The person intended, that is the person meant, to enter into that agreement;

    3. (3)

       The person and at least one other party to the agreement intended that an offence of the type referred to in s 11.5(1) would be committed pursuant to the agreement; and

    4. (4)

       the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

31. [88]

    In the present case, the applicant was charged with conspiracy to commit the offence referred to in s 101.6(1) of the Criminal Code which is punishable by imprisonment for more than 12 months and thus is an offence of the type referred to in s 11.5(1). Section 101.6 relevantly provides:

32. [89]

    The expression “terrorist act” is defined in s 100.1(1) as follows:

33. [90]

    Subsections (2) and (3) of s 100.1, which are referred to in the definition of “terrorist act”, are in the following terms:

34. [91]

    There are a number of significant and related aspects of the offence created by s 101.6(1) which must be noted. First, the offence created by s 101.6(1) relates to conduct which is preparatory to another offence, namely engaging in a terrorist act contrary to s 101.1(1). In Lodhi v R [2006] NSWCCA 121; 199 FLR 303, Spigelman CJ (with McClellan CJ at CL and Sully J agreeing) observed in relation to s 101.6, at [66]:

35. [92]

    Secondly, by virtue of s 101.6(2)(b) and (c), an offence under subs (1) is committed even if the person’s conduct is not done in preparation for, or planning, a specific terrorist act or is done in preparation for, or planning, more than one terrorist act. Section 101.6(2)(b) and (c) were introduced by the Anti-Terrorism Act 2005 (Cth).

36. [93]

    The Second Reading Speech in respect of the Anti-Terrorism Bill 2005 (Cth) including the following: [9]

37. [94]

    The relevant Explanatory Memorandum to the Bill stated:

38. [95]

    Spigelman CJ (James and Howie JJ agreeing) commented on these amendments to s 101.6 in R v B (2008) 76 NSWLR 533; [2008] NSWCCA 85 (R v B), at [45]-[51]:

39. [96]

    This reasoning is consistent with the fact that, under s 101.6(2) there does not have to be any specific terrorist act which is being prepared for or planned. In addition, it also does not matter whether the persons involved have determined whether or not there should be one, or more than one, terrorist act which was being prepared for or planned.

40. [97]

    In Abbas v The Queen [2022] VSCA 39; 297 A Crim R 1 (Abbas), the Victorian Court of Appeal dealt with an appeal against a conviction for conspiracy to do an act or acts in preparation for, or planning, a terrorist act contrary to ss 11.5(1) and 101.6(1). The grounds of appeal included in ground 1 that the trial judge had erred in relation to directions as to the “mental element” of the offence. One particular contention was that the trial judge erred by failing to direct the jury that an act in preparation for a terrorist act must be an act that is intended “to advance the commission of a terrorist act”, and that the offence requires that the accused “intended that an act be committed which would advance the commission of a terrorist act” on the basis that the attitude of the offender towards the commission of a terrorist act is at the heart of the substantive offence of doing an act in preparation for a terrorist act. The Court of Appeal rejected that latter proposition. T Forrest, Emerton and Kennedy JJA explained why this proposition was rejected at [101] as follows:

41. [98]

    In light of terms of s 101.6(1) and (2)(a), (b) and (c), their context and purpose, and relevant authorities including the reasoning in Lodhi, R v B and Abbas, in my view s 101.6 has been and should be construed as providing that an offence against s 101.6(1) is committed by the doing of any act of the type specified in that subsection, namely “any act in preparation for, or planning, a terrorist act”, with the necessary intention, which is the relevant fault element by virtue of s 5.6(1). The terms of pars (b) and (c) of s 101.6(2) confirm that the existence of one or more specific terrorists acts which are being prepared for or planned is not an essential ingredient of the offence contrary to s 101.6(1). In other words, the relevant ingredient is in effect that the act done must be of such a type as to meet the statutory description of an “act in preparation for, or planning, a terrorist act” without the need for there to be any specific terrorist act identified.

42. [99]

    Accordingly, the essential ingredients of the offence under s 11.5(1) of conspiracy to commit an offence contrary to s 101.6(1) do not include the existence of one or more specific terrorist acts in respect of which there is an agreement to do preparatory acts or planning. Rather the essential ingredients for the offence of conspiracy to do acts in preparation for, or planning, a terrorist act might be formulated, at a general level and without regard to the specific factual issues in a particular case, as follows:

    1. (1)

       The person entered into an agreement with at least one other party to do an act or acts meeting the description of an act in preparation for, or planning, a terrorist act;

    2. (2)

       The person intended, that is meant, to enter into that agreement;

    3. (3)

       The person and at least one other party to the agreement intended that an act meeting the description of an act done in preparation for, or planning, a terrorist act would be done pursuant to the agreement; and

    4. (4)

       the person or at least one other party to the agreement committed an overt act pursuant to the agreement.

43. [100]

    The essential ingredients identified by the trial judge for the jury in her Honour’s summing up and written directions, which have been quoted above at [51] and [52], were consistent with this. Indeed, on this appeal there was no challenge to the trial judge’s formulation of the essential ingredients of the offence charged under ss 11.5(1) and 101.6(1).

44. [101]

    By way of contrast, it can be noted that, since the commission of an overt act is an essential ingredient of the offence of conspiracy to do an act in preparation for, or planning, a terrorist act by virtue of s 11.5(2)(c), the jury must be unanimous as to the existence of at least one particular overt act. Such a direction was given by the trial judge in the present case, at par 49 of the oral directions, quoted at [52] above.

45. [102]

    In seeking to establish the first essential ingredient that the person entered into an agreement to do an act or acts that met the description of an act in preparation for, or planning, a terrorist act, the Crown might well rely on evidence of acts done to prepare for or plan particular terrorist acts. In the present case, the prosecution gave particulars, and relied on evidence, of preparatory acts and planning in relation to terrorist acts including but not limited to acts in relation to both the bomb plot and the gas plot. For the reasons given above, the particular terrorist acts were not, however, essential ingredients of the offence of conspiracy to do an act or acts in preparation for, or planning, a terrorist act. The evidence relating to acts in respect of those specific plots merely provided an evidentiary pathway by which it could be concluded that the agreement related to act or acts meeting the description of an act done in preparation for, or planning, a terrorist act. It was not necessary to avoid different jurors convicting an accused of different offences encompassed within the single count on the indictment to require them all to be agreed on the terrorist act or acts to which the preparatory act and planning related. There was only one offence of which the jury could find the applicant guilty, namely conspiracy to do acts of the type specified in s 101.6(1). Nor would there be any lack of certainty as to the basis on which the applicant was convicted, in the absence of such an extended unanimity direction, given the nature of the offence of conspiracy to do any act in preparation for, or planning, a terrorist act, as explained above.

46. [103]

    Consequently, it was neither necessary nor appropriate to give an extended unanimity direction to the effect that the jury must all agree on the specific terrorist act or acts which are being prepared for or planned before they could reach a verdict of guilty on a charge of conspiracy to do an act or acts in preparation for, or planning, a terrorist act or acts.

47. [104]

    This conclusion is consistent with Rothman J’s conclusion in R (Cth) v Alqudsi (No 7) [2023] NSWSC 354, that an extended unanimity direction was not necessary in relation to a charge of intentionally directing the activities of a terrorist organisation contrary to s 102.2 of the Criminal Code. In that case, his Honour noted the relevant aspect of the definition of “terrorist organisation” in s 102.1(1) as being an organisation that is directly or indirectly engaged in preparing or planning a terrorist act. The circumstance which was said to give rise to the need for an extended unanimity direction was submitted by the accused in that case to be that “one of the factual pathways to guilt is to prove the planning or fostering of attacks on Woolloomooloo Naval Base. Another factual pathway is to prove the planning or fostering of an attack on the Court or, separately on the Mardi Gras et cetera” (at [17]). In refusing to give an extended unanimity direction, his Honour’s reasoning was:

48. [105]

    A similar approach was taken by Lonergan J in R v Lucas [2023] NSWSC 1195; 382 FLR 199 where her Honour held it was inappropriate in that case to give an extended unanimity direction in relation to a charge of doing an act or acts in preparation for or planning a terrorist act or acts in contravention of s 101.6(1) of the Criminal Code. The Crown case was that the accused had done “acts in preparation for a terrorist act or acts on critical infrastructure, a military facility or a place of worship”. The extended unanimity direction sought was to the effect that the jury must be unanimous as to the acts being preparatory to at least one type of target namely critical infrastructure or a military facility or a place of worship. At [25] and [26], Lonergan J said:

49. [106]

    Similarly in the present case, given the nature of the essential ingredients of a charge of conspiracy to do acts in preparation for a terrorist act, the existence of an agreement to do such acts does not depend on there being a specific terrorist act for which preparations were made or planning was undertaken. The fact that particulars were given of the bomb plot and the gas plot does not lead to there being different factual pathways to guilt and none of the plots was essential to the establishment of the applicant’s guilt in the present case. An extended unanimity direction of the type contended for by the applicant was not required.

50. [107]

    As noted above, another factor identified in Walsh as relevant in considering whether an extended unanimity direction might be required is the parties’ cases at trial and the live issues at the conclusion of the evidence.

51. [108]

    On appeal, the applicant accepted that the existence of the bomb plot and the gas plot was not in issue at trial. His written submissions included: [10]

52. [109]

    What was in issue at the conclusion of the evidence in the present case was clearly articulated during the defence closing address as follows: [11]

53. [110]

    Accordingly, by the conclusion of the evidence, the existence of a conspiratorial agreement between Khaled, Tarek and the Controller "of the kind alleged”, namely an agreement to do acts in preparation for or planning a terrorist act or acts, was not in issue. The “primary issue” was whether the prosecution had proved beyond reasonable doubt that the applicant was a party to that conspiratorial agreement.

54. [111]

    As noted above at [48], in his submissions at one point the applicant framed the issue in dispute at trial as whether the applicant was “a party to the plan to commit the terrorist act or acts” and other submissions suggested that the prosecution case was that the applicant was party to a conspiracy to commit either the bomb plot or the gas plot or both. [12] These submissions appear to proceed on the basis that the charge in the applicant’s case was conspiracy to commit a terrorist act rather than conspiracy to do acts in preparation for, or planning, a terrorist act.

55. [112]

    In addition, in the applicant’s submissions in reply, it was contended that:

56. [113]

    The applicant’s oral submissions included submissions to a similar effect.

57. [114]

    The requirement for unanimity is a practical question, not a technical one: AKB at [65] citing Magnus v R (2013) 41 VR 612; [2013] VSCA 163 at [46] and R v Mead [2002] 1 NZLR 594 at [17].

58. [115]

    Although the relevant terrorist acts relied on by the prosecution included those referred to during the trial as the “bomb plot” and the “gas plot”, the “primary issue” on the defence case at the end of the evidence was whether the applicant joined, or became a party to, the conspiratorial agreement to do acts in preparation for a terrorist act, the existence of which between Khaled, Tarek and the Controller was not in issue. This primary issue went to the first essential ingredient of the charge and did not involve the jury being satisfied beyond reasonable doubt that the applicant had “joined” the bomb plot or the gas plot or both thereby becoming a party to a conspiracy to commit a terrorist act.

59. [116]

    Accordingly, contrary to the applicant’s submissions, there was no need for the jury to be unanimous as to whether the applicant joined the bomb plot or the gas plot or both and, thus, there was no need for an extended unanimity direction as to those matters, in the terms proposed by the applicant or otherwise. Such a direction would not only fail to reflect the issues in the trial at the conclusion of the evidence, it would also fail to reflect the nature of the essential ingredients of a charge of conspiracy to do acts in preparation for, or planning, a terrorist act and the terms of s 101.6(2)(b) and (c), as explained above.

60. [117]

    Since the ground was fully argued and raised issues of general importance and there was some explanation for the delay, I would grant leave to bring the appeal out of time under r 3.5(5) of the Criminal Appeal Rules and leave to appeal under r 4.15 of the Criminal Appeal Rules. Nonetheless, for the reasons given, I would reject the first ground of appeal.

Ground 2

1. [118]

   The second ground of appeal concerned whether the trial judge erred in allowing three alleged lies of the applicant in answers given during three interviews with police to be used as evidence of consciousness of guilt.

2. [119]

   The trial judge allowed the Crown to submit during its closing address that the following statements amounted to lies evidencing consciousness of guilt: [13]

3. [120]

   Despite the fact that the applicant’s trial counsel did not rely on this argument before the trial judge, the applicant’s submission was that none of these statements (b), (c) and (d) should have been permitted to be used as lies evidencing consciousness of guilt because none was material or “explicable only on the basis that the truth would implicate the accused in the offence with which he is charged” and thus none was capable of supporting the inference that the applicant perceived that the truth was inconsistent with his innocence and would implicate him in the offence, citing Edwards v The Queen (1993) 178 CLR 193 (Edwards) at 209 and 210; [1993] HCA 63. The basis for these conclusions was submitted to be as follows.

   1. (1)

      As to (b), the statement that the applicant did not actually know whether Khaled was in contact with Tarek, the applicant having “that knowledge could not reasonably have been perceived by [the applicant] as inconsistent with his non-involvement in preparation for a terrorist act, with the consequence that the lie was not reasonably capable of being explicable only on the basis that the truth would implicate him”.

   2. (2)

      As to (c), the statement that the applicant did not know Khaled had bought the welder machine until he came to his house on the day they collected it, the applicant having “that knowledge could not reasonably have been perceived by [the applicant] as inconsistent with his non-involvement in preparation for a terrorist act, with the consequence that the lie was not reasonably capable of being explicable only on the basis that the truth would implicate him”.

   3. (3)

      As to (d), the statement that the applicant was “surprised” about Amer and Khaled coming past Cleveland Street on 15 July 2017, if the applicant knowing that Khaled was intending to come to the home of his wife’s parents with Amer before taking Amer to the airport, “that knowledge could not reasonably have been perceived by the [applicant] as inconsistent with his innocence of involvement in a bomb plot, with the consequence that the lie was not reasonably capable of being explicable only on the basis that the truth would implicate him”.

4. [121]

   Finally, the applicant submitted that, since the asserted lies should not have been left to the jury as independent evidence of guilt, there was a serious miscarriage of justice.

5. [122]

   The Crown commenced its submissions by summarising the principles in relation to lies as consciousness of guilt.

6. [123]

   As to (b), the Crown submitted that there was evidence to demonstrate that the statement that the applicant did not know whether Khaled was in contact with Tarek was false. It was also submitted that, given the context of the interview including Tarek’s activities which were known to the applicant together with the applicant’s knowledge that authorities were interested in Tarek’s activities, there was a strong inference that the applicant knew that to confirm his knowledge that Khaled and Tarek were in contact would incriminate him. Thus, it was said that (b) was material and was correctly left to the jury to consider whether it amounted to consciousness of guilt with proper directions.

7. [124]

   As to (c), the Crown’s contentions included in effect that the applicant’s statement that he did not know Khaled had bought the “welder machine” until he came to his house on the day they collected it was contrary to the evidence identified by her Honour in Khayat No 6. Even if the applicant only became aware of the delivery in the days leading up to it, a response by the applicant that demonstrated awareness of the delivery and discussion about it would have implicated him in the alleged conspiracy. Consequently, it was open to the jury to conclude that the lie was material and the only reason the applicant made statement (c) was that the truth was inconsistent with his innocence.

8. [125]

   In relation to (d), it was submitted that the statement that the applicant was “surprised” about Amer and Khaled coming past Cleveland Street on 15 July 2017 was contradicted by text messages between the applicant and Khaled and other evidence. The Crown contended that, had the applicant answered truthfully that he was aware of Khaled’s and Amer’s planned arrival and had discussions concerning taking Amer to the airport, that answer would have been relevant to his involvement in relation to the bomb plot. Thus it was said that it was open to the jury to conclude that the only reason the applicant told this lie was that the truth was inconsistent with his innocence.

9. [126]

   In reply to the Crown’s submissions, the applicant submitted that the Crown’s submissions involved conflating the asserted lies in each of statements (b), (c) and (d) with other lies and that the only way the asserted lies could support an inference that the applicant believed that the truth would implicate him was if reliance was placed on other evidence to conclude that the applicant was conspiring with Khaled to prepare for a terrorist act and told lies to hide that fact. Such reasoning was submitted to be circular and impermissible, relying on R v Zheng (1995) 83 A Crim R 572 (Zheng).

10. [127]

    The applicable general principles in relation to reliance on lies as consciousness of guilt were not in dispute on this appeal.

11. [128]

    A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence charged, that is it relates to a material issue, and if it was told by an accused in circumstances in which the explanation for the lie is that the accused knew that the truth would implicate the accused in the offence: Edwards at 210 (Deane, Dawson and Gaudron JJ).

12. [129]

    Where those conditions are satisfied and a lie is relied on as consciousness of guilt, the lie should be precisely identified together with the circumstances and events which indicate that it constitutes an admission against interest: Edwards at 210-211.

13. [130]

    The jury directions which should be given in respect of lies as consciousness of guilt are also addressed in Edwards at 211. In the present appeal, however, there was no challenge to the content of the Edwards direction given by the trial judge and it is not necessary to consider the jury direction actually given for the purpose of determining ground 2.

14. [131]

    The applicant’s submissions focused on whether each asserted lie was material and capable of supporting the inference that the applicant perceived that the truth was inconsistent with his innocence or, in other words, that the asserted lie was explicable only on the basis that that the truth would implicate the applicant in the offence with which he was charged.

15. [132]

    The conclusion that the asserted lie in each of statements (b), (c) and (d) was not material and was not explicable only on the basis that the truth would implicate the applicant was submitted to be based on the terms of the asserted lie itself, without reference being made to any of the other evidence. In oral submissions, [14] it was said in respect of each asserted lie that, even if the asserted lie was false, “so what?”, it did not “go to anything”.

16. [133]

    More specifically, in respect of statement (b) that the applicant did not actually know whether Khaled was in contact with Tarek, the fact that those brothers were communicating was submitted to be “hardly world shattering” and it was asked “How does that implicate him in anything?” On this basis, it was contended that statement (b) was not material and could not support the conclusion that it was explicable only on the basis that that the truth would implicate the applicant in the offence with which he was charged and, consequently, it should not have been left to the jury to consider as evidence of consciousness of guilt. Essentially, the same submissions were made in respect of statements (c) and (d) on the same basis that even if those statements were false, that did not “go to anything” and would not tend to implicate him.

17. [134]

    A fundamental difficulty with the applicant’s contentions is that they did not take into account other evidence in the trial, including the evidence identified by the Crown in its submissions, which when considered together with the asserted lies, was capable of establishing that each of the asserted lies was both material and only explicable on the basis that the truth would implicate the applicant. The applicant sought to meet this argument by contending that reliance on such other evidence involved a process of circular reasoning which was both irrational and impermissible, as held in Zheng at 576-7.

18. [135]

    In my view, there is no impermissible circular reasoning involved in having regard to other evidence in the present case in considering whether statements (b), (c) and (d) were lies which could be relied on as evidencing consciousness of guilt. Deane, Dawson and Gaudron JJ explained in Edwards at 210 in relation to both the requirement that there be a consciousness of guilt and the requirement for materiality:

19. [136]

    Thus, there is no general prohibition on the asserted lies being considered by the jury together with other evidence.

20. [137]

    The present was not a case where the asserted lies were the only evidence against the applicant nor was any of them an indispensable link in a chain of evidence necessary to prove guilt. Rather, the situation was as described by Deane, Dawson and Gaudron JJ in Edwards at 210:

21. [138]

    The impermissible form of reasoning referred to in Zheng was considered by McClellan CJ at CL in R v Lane [2011] NSWCCA 157; 221 A Crim R 309 (Lane). His Honour said at [14]:

22. [139]

    In addition, Simpson J (with Howie AJ agreeing) said in Lane at [60]:

23. [140]

    In the present case, the conclusion that the applicant lied was not dependent on a finding that he committed the offence charged. Accordingly, it was open to the jury to consider the asserted lies in statements (b), (c) and (d) in light of other relevant evidence in determining whether those asserted lies were material and only explicable on the basis that the truth would implicate the applicant.

24. [141]

    I accept the Crown’s submissions that there was other evidence which, if accepted by the jury, would support the conclusions that statements (b), (c) and (d) were each false, deliberate lies, related to a material issue and were told out a realisation of guilt and a fear of the truth (to adopt the wording of Simpson J’s summary).

25. [142]

    As to statement (b) that the applicant did not actually know whether Khaled was in contact with Tarek, the other evidence included communications at earlier times between the applicant, Tarek and Khaled that could establish that the applicant was aware that Khaled was in contact with Tarek. Since the primary issue in the trial was whether the applicant was a party to the conspiracy between Khaled, Tarek and others to do acts in preparation for a terrorist act, the applicant’s knowledge of communications between two of the participants in that conspiracy was material in the relevant sense. In addition, the evidence which established the background to those communications known to the applicant was also significant. That evidence related to Tarek and his sons being in Syria fighting for Islamic State, Tarek sending both the applicant and Khaled sermons addressing the religious and political aims of Islamic State, including violent jihad, Tarek arranging for the DHL package containing the bomb to be sent following discussions with the applicant and Khaled and other discussions between Tarek and Khaled regarding the use of a timer and the explosive. In addition, there was evidence that the applicant knew that authorities were interested in Tarek’s activities at the time the applicant was interviewed. If this evidence were accepted by the jury, it would be well open to them to conclude that the lie was reasonably capable of being explicable only on the basis that the truth would implicate the applicant.

26. [143]

    As to statement (c) that the applicant did not know Khaled had bought the welder machine until he came to his house on the day they collected it, the other evidence included the material summarised by the trial judge in Khayat No 6 at [14]-[15] as follows:

27. [144]

    As to statement (d) that the applicant was “surprised” about Amer and Khaled coming past Cleveland Street on 15 July 2017, the other evidence included text messages between the applicant and Khaled almost four hours prior to Khaled and Amer arriving and other communications in which it was arranged with the applicant that Khaled would bring Amer to the Cleveland Street property on his way to the airport to see his aunt who had recently had heart surgery. Since taking Amer and the bomb to the airport was one of the acts said to be in preparation for a terrorist act which was the subject of the conspiracy between the applicant, Khaled and Tarek, if the jury accepted that evidence, it was well open to conclude this asserted lie was concerned with a circumstance or event connected with the offence charged and thus related to a material issue. Similarly, it was well open to conclude that the lie was reasonably capable of being explicable only on the basis that the truth would implicate the applicant.

28. [145]

    In light of the evidence as a whole, there was more than adequate material to establish that it was open to the jury to conclude that each asserted lie was material in the relevant sense and was told out of a realisation of guilt and a fear of the truth. Accordingly, there was no error in allowing each of statements (b), (c) and (d) to be left to the jury as evidence of consciousness of guilt with directions in accordance with Edwards.

29. [146]

    Since this ground of appeal lacked substantial merit both on an evidentiary level and on the level of principle, I would refuse leave to make an application for leave to appeal out of time under r 3.5(5) of the Criminal Appeal Rules and refuse leave under s 5(1)(b) of the Criminal Appeal Act, in respect of ground 2.

Proposed orders

1. [147]

   Accordingly, I propose that the orders of the Court should be:

   1. (1)

      Grant leave under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Criminal Appeal Rules) to make the application for leave to appeal in respect of ground 1 out of time.

   2. (2)

      Grant leave to appeal under r 4.15 of the Criminal Appeal Rules in respect of ground 1.

   3. (3)

      Refuse leave under r 3.5(5) of the Criminal Appeal Rules to make the application for leave to appeal in respect of ground 2 out of time.

   4. (4)

      Refuse leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) in respect of ground 2.

   5. (5)

      Dismiss the appeal.

2. [148]

   HUGGETT J: I agree with the orders proposed by Wright J and the additional observations of Harrison CJ at CL for the reasons their Honours have given.