Dirani v R

1. [1]

   BATHURST CJ: Mustafa Dirani (the applicant) was charged on an indictment dated 19 December 2018 that between 6 August 2015 and 2 October 2015, he conspired with Raban Alou (Mr Alou), Milad Atai (Mr Atai) and others to do acts in preparation for a terrorist act contrary to s 11.5(1) and s 101.6(1) of the Criminal Code (Cth).

2. [2]

   Following a trial by jury, the applicant was convicted of the offence on 14 March 2019. On 9 August 2019, he was sentenced to a term of imprisonment of 28 years with a non-parole period of 21 years.

3. [3]

   The applicant has sought leave to appeal against his conviction and sentence on the following grounds:

4. [4]

   I am of the opinion that the applicant should be granted leave to appeal, the appeal should be allowed, the conviction quashed and a new trial ordered. These are my reasons for reaching this conclusion.

5. [5]

   Justice Price has set out the Crown case and the evidence led at the trial in considerable detail. What I have written below should be read in conjunction with that material.

Ground 1: The verdict is unreasonable and cannot be supported by the evidence

1. [6]

   Having considered the whole of the record, I agree for the reasons given by Price J this ground of appeal has not been made out.

Ground 2: The Crown impermissibly invited the jury to speculate in its closing address that unrecorded conversations and interactions between the applicant and the co-conspirators could have been used to discuss the conspiracy

1. [7]

   Prior to the commencement of the Crown’s closing address, Senior Counsel for the applicant foreshadowed a concern that unrecorded conversations between the applicant and Mr Alou would be suggested by the Crown to relate to the alleged conspiracy, submitting that such a suggestion was “entirely conjectural” and would invite the jury to draw inferences where such inferences could not be justified.

2. [8]

   In response, the Crown stated that he would not be submitting to the jury that the jury could infer that the conversations which were not recorded were about any particular topic, rather to respond to the defence position that had been put to a number of witnesses that there were no communications other than those which had been recorded.

3. [9]

   The trial judge made the following ruling:

4. [10]

   No challenge was made to the ruling on the appeal.

5. [11]

   Thereafter, the Crown addressed the jury. Of relevance are the following remarks:

6. [12]

   The trial judge early in his summing-up told the jury that it was important that the jury did not speculate or guess. His Honour also gave the following specific direction:

7. [13]

   It should be noted that no objection was taken of the Crown’s address nor any further directions sought.

8. [14]

   Counsel for the applicant referred to the submissions by the Crown concerning the meeting which took place at Stocklands Mall. It was accepted the Crown was entitled to say to the jury that they should not speculate into thinking the meeting was only about shoes and supplements and that they discussed nothing else. However, he submitted that the reference to a “crescendo of activity” building up and the statement that that was at the forefront of Mr Alou’s mind was a matter in respect of which there was no evidence and it fell foul of the direction given by the trial judge.

9. [15]

   Similar submissions were made with respect to the Crown’s references to “gun” and “Farhad” in dealing with the conversation on the wall at Merrylands Oval. No objection was taken to the prosecutor’s statement that he could not submit that the word “terrorism” was said, or the word “gun” or the word “Farhad” was said. However, counsel for the applicant said the remarks which followed this comment placed in the jury’s mind that the discussion was about the conspiracy.

10. [16]

    The Crown submitted that it was open to suggest to the jury that there were other opportunities for the applicant and Mr Alou to communicate.

11. [17]

    The Crown submitted that the way the submission was put did not suggest that something could be inferred about what was actually said, although at the hearing the Crown accepted it may have come close to that. It was submitted that the Crown was not inviting the jury to speculate about the content of the conversations, but simply pointing out that the jury could not act as if every single conversation and exchange between the applicant and Mr Alou was before them.

12. [18]

    The Crown pointed out that there was no objection or challenge made to what was said at the trial. It also pointed out that the final part of the address, to which I have referred at [11] above, brought the matter back to the point that it could not be submitted that no further conversations took place.

Consideration

1. [19]

   If what was done by the Crown was in fact to invite the jury to speculate that in the conversations which were unrecorded the applicant and Mr Alou discussed the conspiracy, including the obtaining of a gun and the involvement of Farhad Mohammad, then such an invitation would invite impermissible speculation, which potentially could give rise to a miscarriage of justice (see Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 at [31]–[32]).

2. [20]

   However, it is not challenged that the Crown was entitled to respond to the proposition put that there were no communications other than those recorded. Nor is there a challenge to the ruling by the trial judge that the Crown was entitled to submit to the jury that there were other opportunities for communications, and to rebut a suggestion that the totality of the communications between the applicant and Mr Alou was effectively before the jury and that if they were not in evidence then they did not or could not have happened.

3. [21]

   It seems to me that ultimately the Crown did not go outside the ruling given by the trial judge, nor did it invite the impermissible speculation complained of. The passages in the closing address complained of were introduced by the remark that it was expected to be submitted that the absence in the recorded conversations of anyone saying the word “gun” or “Farhad” to the applicant is such that it could not have happened. The concluding portion of this section of the Crown’s address makes the same point.

4. [22]

   The focus of the complaint was the reference to the fact that the “crescendo of activity” was building up and the statement that Mr Alou was under “huge pressure”. On balance, I do not think that submission invited the jury to speculate that the unrecorded conversation in question concerned the conspiracy. Rather, the prosecutor was forcibly putting the point that there were conversations between Mr Alou and the accused which were not recorded, such that the jury could not be satisfied that the evidence of all conversations was before them and thus accept there were no conversations concerning the conspiracy. In that context, the address may be contrasted with the evidence of CIN 1877, the subject of ground 3.

5. [23]

   It would have been preferable that reference had not been made to the “crescendo of activity” or Mr Alou being under “huge pressure”. However, I do not think that these remarks taken in context lead to the result complained of. First, because the opening and closing portion of that part of the address indicated that it was designed to emphasise that not all the conversations were before the jury. Second, the agreed facts show in any event that the activities of Mr Alou on 2 October 2015 could well be described as reaching a “crescendo”.

6. [24]

   I am fortified by the fact that experienced senior counsel for the applicant did not raise any complaint concerning this portion of the address. Further, the trial judge gave a specific direction dealing with the unrecorded conversations in which he warned against speculation (see [12] above). No further direction was sought.

7. [25]

   In these circumstances, this ground has not been made out.

Ground 3: His Honour erred in permitting CIN 1877 to give expert evidence of his opinion as to the applicant’s manner of driving on 2 October 2015

1. [26]

   CIN 1877 was a police officer who claimed to have expertise in surveillance and counter-surveillance techniques. He gave evidence by reference to various photographs and video footage to the effect that the activities of the applicant on 2 October 2015 were consistent with him conducting surveillance and counter-surveillance on behalf of Mr Alou.

2. [27]

   It was not disputed that CIN 1877 had expertise in the field of surveillance and counter-surveillance. Rather, it was asserted that the Crown had not established that CIN 1877’s opinions were based on his expertise and second, that there was prejudice to the applicant on the basis of a “white coat effect” of someone providing expert evidence regarding the applicant’s movements when these movements were readily observable by a jury.

3. [28]

   As I indicated, CIN 1877 was a police officer. So far as his qualifications and experience were concerned, he stated that since about 2002 “on and off” he had been involved in full-time surveillance and part-time surveillance work. He stated that he had been involved in full-time surveillance work from about 2006.

4. [29]

   CIN 1877 stated that he was the Operations Coordinator at the State Surveillance Branch. He said that in that capacity he deployed surveillance teams attached to the State Surveillance Branch on a daily basis. He said that during his career he had been a surveillance operative on the ground as a constable and a surveillance team leader as a sergeant prior to his present position as Operations Coordinator as a senior sergeant. He stated that as a result he had extensive experience in the area of surveillance. He also stated that he did the detectives education program through the New South Wales Police and completed the degree of Bachelor of Policing Investigations. He stated that he completed the Australian Federal Police National Surveillance course in 2006. He also stated that in 2010 he completed the Australian Federal Police Advanced Surveillance program, which he described as a program targeted at team leader level for full-time surveillance units from various agencies from around Australia and some internationally. He said that the program involved training in the use of, the detection of, and the planning for anti-surveillance and counter-surveillance techniques.

5. [30]

   CIN 1877 gave evidence as to what he meant by anti-surveillance and counter-surveillance. He described anti-surveillance by way of an example in the following terms:

6. [31]

   He defined counter-surveillance as follows:

7. [32]

   CIN 1877 was asked what he was trained to do in relation to anti-surveillance and counter-surveillance and gave this answer:

8. [33]

   That may provide a justification for CIN 1877 giving evidence as to the nature of surveillance or any surveillance techniques. The question still remains whether he was entitled to give evidence as to whether what he saw on the material provided to him amounted to the applicant engaging in those techniques.

9. [34]

   CIN 1877 stated that during the years he had been doing the work he described, he had been involved in monitoring untrained people attempting to carry out rudimentary anti-surveillance and counter-surveillance techniques. He described the monitoring of untrained people in the following terms:

10. [35]

    He described the bringing of a support network in the following terms:

11. [36]

    CIN 1877 described informal counter-surveillance as counter-surveillance not being conducted by a person who has been professionally trained like a surveillance police officer.

12. [37]

    CIN 1877 then gave examples of anti- and counter-surveillance techniques. He described “sitting off” as a process of a person positioning themselves or their vehicles so as to view the activities of another. He described being a “cockatoo” or “lookout” as the activity of someone monitoring the activities of another to identify a threat and/or someone watching them. He described the activity of “shadowing” as when a person or vehicle mimics the activities of another in an attempt to provide protection for a threat and/or to identify someone following them.

13. [38]

    CIN 1877 then gave evidence of his opinion of the activities of the applicant on 2 October 2015. He stated that he reached these conclusions by reference to the surveillance running sheet for 2 October, a CCTV compilation of surveillance footage as well as aerial footage, and various videos and photographs, including videos and photographs taken by surveillance officers on the ground that day. I will not set out the whole of his evidence but only so much as is adequate to indicate the nature of the objection taken.

14. [39]

    CIN 1877 was referred to surveillance footage which described a white vehicle driven by Mr Alou travelling from Parramatta and arriving at Jones Park at 1.39pm. He agreed the footage showed Mr Alou’s white car travelling first, followed by Mr Dirani’s silver hatchback, turning off the public street into a carpark in the area of Jones Park. He was referred to the footage showing Mr Dirani reverse parking into the area of the carpark, Mr Alou doing a U-turn, bringing his vehicle diagonally across the front of Mr Dirani’s, pausing, and then parking in the opposite side of the carpark from Mr Dirani’s vehicle. He agreed that a thermal image identified Mr Alou meeting Mr Alameddine. He then gave the following evidence:

15. [40]

    Referring to the position of the two cars, CIN 1877 then gave this evidence:

16. [41]

    He was then shown a photograph of Mr Alou meeting Mr Alameddine at the time, and he gave this evidence:

17. [42]

    CIN 1877 described Mr Dirani’s behaviour as “shadowing”, being the “support network for Mr Alou by mimicking or following him”, and being in a position where he was able to be a “second pair of eyes”, whereby “if there was something out of the ordinary … – he’s just being that support network for Mr Alou.”

18. [43]

    He described that what had occurred was consistent with what he described as “cockatooing”, “sitting off” and “shadowing”.

19. [44]

    CIN 1877 was then referred to surveillance showing Mr Alou’s and Mr Dirani’s vehicles travelling towards Warwick Road, Merrylands. He was referred to surveillance showing Mr Alou’s vehicle proceeding along Warwick Road, Merrylands, parking along the left-hand side kerb, followed closely by Mr Dirani’s silver hatchback parking behind. He was asked whether he considered Mr Dirani’s conduct to be consistent with counter-surveillance and gave this answer:

20. [45]

    CIN 1877 was then referred to aerial footage which showed that whilst Mr Dirani remained in the front driver’s side position of his vehicle, a meeting took place for seven minutes between Mr Alou and Mr Alameddine. He said Mr Dirani’s behaviour was consistent with counter-surveillance, giving this answer:

21. [46]

    He next expressed the view that Mr Alou and Mr Alameddine had got out of Mr Alou’s car to avoid any electronic surveillance.

22. [47]

    CIN 1877 was then referred to surveillance material at Merrylands Park, Merrylands. He referred to Mr Alou’s vehicle proceeding towards Merrylands Park, followed by Mr Dirani’s vehicle. He said again his view was that Mr Dirani was a “support network shadowing Mr Alou”, stating that from his experience, “I believe that he is being that second pair of eyes for Mr Alou”.

23. [48]

    He was next referred to where the vehicles were parked and gave this evidence:

24. [49]

    CIN 1877 was then referred to the fact that the applicant only parked his car briefly in that fashion then pulled out and parked bonnet facing immediately to the right of Mr Alou’s car. He was asked whether this was consistent with counter-surveillance and gave this answer:

25. [50]

    In addition to what might be described as surveillance evidence, CIN 1877 also expressed a view about the activities of Mr Alou and Mr Dirani on that day. He referred to Mr Alou and Mr Dirani getting out of their cars at Merrylands Park and expressed this view:

26. [51]

    He was also referred to a phone conversation between Mr Alou and Ms Perger (Mr Alou’s wife) on 2 October 2015 at 2:12:08, where Mr Alou said “I’m just goin’ to eat with, ah, what do you call it, one of the boys, brother Musti”. CIN 1877 gave evidence that in his review of the surveillance evidence, including the aerial footage, he did not see anything to indicate that Mr Alou ate with the applicant on that day.

27. [52]

    CIN 1877 summarised his conclusions in the following terms:

28. [53]

    He was finally asked in relation to the answer I have referred to immediately above, which “bits” he said could have been “done better” and gave this answer:

29. [54]

    Prior to the first occasion that the applicant was tried for this offence, a voir dire was held to determine the admissibility of the proposed evidence of CIN 1877.

30. [55]

    A statement prepared by CIN 1877 was tendered at the hearing. Although the Crown submitted that the evidence on the voir dire was somewhat different to that ultimately given by CIN 1877 at the second trial, the differences do not seem to me to be material.

31. [56]

    The trial judge ruled the evidence was admissible.

32. [57]

    In his Honour’s judgment, R v Dirani (No 6) [2018] NSWSC 891 (judgment on the voir dire or voir dire judgment), the trial judge identified at [115] that the issue to which the evidence went was whether the conduct of the applicant on the afternoon of 2 October 2015 amounted to an act in furtherance of the alleged conspiracy. His Honour stated at [117] that he was satisfied that CIN 1877 had specialised knowledge based on his training, study and experience in the field of surveillance. The trial judge concluded at [118] that although members of the public and the jury may have some basic understanding of avoidance action, the specialised knowledge of CIN 1877 concerning counter-surveillance and anti-surveillance measures goes far beyond the type of understanding which members of the public might possess. In that context, his Honour made the following remarks at [119]:

33. [58]

    The trial judge also stated in his judgment that he was satisfied that CIN 1877’s opinions were at least based substantially on his specialised knowledge based on his training, study and experience. His Honour stated that the fact that the evidence also related to “observations and knowledge of everyday affairs and events” did not render it inadmissible (R v Dirani (No 6) at [120]). His Honour also stated at [122] that there was no impediment to the admissibility of the evidence that CIN 1877 was working from a video and documents without personal attendance at the various locations involved.

34. [59]

    In those circumstances, the trial judge expressed the following conclusions:

The submissions

1. [60]

   In his written submissions, the applicant accepted that although CIN 1877’s expertise is not in a traditional area of knowledge, his experience and training would be sufficient for him to be considered as an expert in his field. It was also acknowledged that no objection was taken to the relevance of his evidence.

2. [61]

   The applicant stated that the conclusion reached by the trial judge at [119] of his Honour’s judgment on the voir dire was not challenged. However, it was submitted that R v Kingswell (Supreme Court (NSW), Smart, Studdert and Hidden JJ, 2 September 1998, unrep) (“Kingswell”), on which the trial judge relied, was decided before the decision of the High Court in Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 (“Honeysett”) and Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 (“Smith”). It was also submitted that Kingswell was different from the present case in that the officer providing the opinion in Kingswell was in fact the only witness to the events in question, and it was necessary for the evidence to be given to understand the significance of what the officer had noted.

3. [62]

   It was submitted in the present case that the evidence, to the extent it attributed motive to the applicant’s conduct, was not based on any expertise, referring by way of example to the evidence to which I have referred at [39], [40], [41], [42], [48]–[50] and [52] above.

4. [63]

   The submissions referred to the remarks made by the trial judge at [127] of his Honour’s judgment on the voir dire. I have referred to these remarks at [59] above. It was submitted that what was said there by his Honour identified the reason that the evidence should not have been admitted. It was submitted that the conclusion of the trial judge was in effect that without the evidence, the jury might have thought that what was being done was unusual or odd. It was stated that that was the applicant’s case, and that the jury would be able to judge for themselves whether what occurred was consistent with surveillance or just odd. He submitted that in those circumstances the evidence was “merely gratuitous commentary to factual observations”.

5. [64]

   At the hearing, counsel for the applicant submitted that the basis of the objection was that the evidence given by CIN 1877 was not based on his specialist knowledge. He submitted that it was difficult to see the expertise which the statement that people were travelling in convoy was based upon. He submitted that the officer used expressions which were artificial, giving examples of where someone is following a car, they are in “convoy”, and someone in the vicinity being a “cockatoo”. He submitted that the evidence was not based on the officer’s expertise and could have been dealt with by the jury with the advantage of submissions. He submitted that CIN 1877 was no more than an advocate for the Crown.

6. [65]

   Council for the applicant, referring to Honeysett at [24], stated that there was no connection between the officer’s expertise and the evidence he gave.

7. [66]

   Counsel for the applicant submitted that Kingswell could be distinguished in two ways. The first was that the police officer in that case was actually observing the activities of the accused. Secondly, and more importantly, in the present case there was no observable testing methodology by which the reasoning of the expert could be tested.

8. [67]

   The Crown in its written submissions submitted that no challenge was made to the trial judge’s conclusion that CIN 1877 had specialised knowledge. It submitted that Kingswell remained good law and was not inconsistent with Honeysett, Smith or Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (“Makita”).

9. [68]

   The Crown sought to characterise this ground of appeal as challenging the finding of the trial judge on the voir dire that the opinions expressed were based substantially on specialised knowledge because the jurors could themselves view the primary material and form their own opinions.

10. [69]

    The Crown submitted that the applicant’s argument should be rejected as first, CIN 1877’s evidence clearly exposed the reasoning on which his opinion was based. Second, it was submitted that the applicant was able to give expert evidence on counter-surveillance techniques that allowed the jury to see what they would otherwise not see. Third, it was submitted that no issue was taken to the summing-up by the trial judge, in that the jury were told it could accept all, some or none of what was said by the expert. Fourth, it was noted that the Crown submitted in closing that the jury had a been to the locations in question during the course of a view and were in a better position than CIN 1877 to consider whether the applicant was conducting counter-surveillance or acting as a support person.

11. [70]

    At the hearing, the Crown submitted that the challenge was to the ruling of the trial judge on the voir dire and it was impermissible to use the evidence at the trial to challenge that ruling.

12. [71]

    The Crown submitted CIN 1877 exposed his reasoning by describing counter-surveillance and anti-surveillance. It submitted that the steps in his reasoning included making observations and recording behaviour. The Crown submitted that the ruling was made in accordance with Kingswell, which he submitted remained good authority.

Consideration

1. [72]

   The admissibility of expert opinion evidence is governed by the provisions of s 79 and s 80 of the Evidence Act 1995 (NSW). So far as relevant, they are in the following terms:

2. [73]

   As was pointed out in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 (“Dasreef”) at [37], the admissibility of opinion evidence is to be determined by the requirements of the Evidence Act, rather than attempting to analyse particular statements in decided cases divorced from the context in which they were made. However, the plurality went on to make the following remarks:

3. [74]

   Section 80(b) of the Evidence Act makes it clear that evidence of an expert is not inadmissible merely because it is about a matter of common knowledge. However, that does not mean that the opinion of the expert must not be drawn wholly or substantially from the expert’s specialised knowledge based on his or her training, study and experience. The remarks of Heydon JA in Makita, cited with approval by the High Court in Dasreef, makes this clear:

4. [75]

   The effect of s 80(b) of the Evidence Act was explained by each of Gaudron J and Gummow and Callinan JJ in Velveski v R [2002] HCA 4; (2002) 76 ALJR 402 (“Velveski”). Justice Gaudron made the following comments at [82]:

5. [76]

   It is what Gummow and Callinan JJ described as the “added ingredient of specialised knowledge to the expert’s body of general knowledge” which both enables the expert to give his or her opinion and avoids experts giving opinions outside the range of specialist knowledge, which as Gleeson CJ pointed out in HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 at [44] may invest such opinions with a spurious appearance of authority and thereby subvert the legitimate process of fact-finding.

6. [77]

   In the present case, it was accepted by the applicant that CIN 1877 had specialised knowledge in what might be described as surveillance techniques. That concession was correct having regard to the evidence of CIN 1877 to which I have referred at [29] above.

7. [78]

   In that context I am prepared to accept that CIN 1877’s description of surveillance, anti-surveillance and counter-surveillance techniques were based on his knowledge, skill and experience and was relevant to assist the jury in their consideration of the activities of the applicant on 2 October 2015. Thus the evidence which I have set out in [30]–[35] above was both relevant and admissible.

8. [79]

   However, the evidence which CIN 1877 gave by reference to the material to which I have referred at [38] above is more problematic. It is convenient to deal with each portion of the evidence in turn.

9. [80]

   The first part of the answer is simply a description of what occurred. It is not based on any expertise. The second part seems to me to amount to speculation. The suggestion that the applicant was watching out for the police or supporters of Mr Alameddine does not seem to be based on any particular expertise that CIN 1877 may have. It is speculation of the reason for the applicant’s conduct, rather than a conclusion derived from CIN 1877’s expertise. In my opinion the evidence was not admissible.

10. [81]

    This evidence really goes no further than describing what could be observed from the video recording. The jury did not need expert evidence to determine why the applicant was following Mr Alou, particularly if they were informed by CIN 1877’s description of what constitutes a “support network”.

11. [82]

    The answers in [41], [42] and [43] above once again first describe where the applicant is parked in relation to Mr Alou’s vehicle, something which emerges from the video footage and could not be said to be based on any knowledge, skill or experience. The series of rhetorical questions given by CIN 1877 in that answer amounts to speculation of what the applicant might be looking for. CIN 1877 does not identify how that evidence is based on his expertise. Further, although it may well be open to the jury to draw the same conclusion having regard to all the evidence at the trial, it is difficult to see without some further stated assumptions how an expert could draw that conclusion as the reason for the applicant’s actions simply from the position of the two cars.

12. [83]

    The same may be said of the evidence to which I have referred in [44], [45] and [48] above. CIN 1877 again speculates what the applicant is doing, whether there is “a threat from police or others, or Mr Alameddine”.

13. [84]

    The evidence in [46] above once again is speculation or, at the very least, not based on any identified expertise.

14. [85]

    Whilst acknowledging that the applicant had moved to a position which was not the best position for surveillance, CIN 1877 persisted in his view that the applicant was conducting surveillance, but did not base it on his expertise, merely making the comment “there’s more to come as to what I think, but I still think he’s being that support network for Mr Alou”.

15. [86]

    This evidence seems to me to be speculation. It makes the assumption, not based on any material available to the expert, that the applicant and Mr Alou believed there may have been listening devices in their vehicles.

16. [87]

    This evidence plainly is not an expert opinion.

17. [88]

    This evidence is a summary of what was said before. It suffers from the same difficulties.

18. [89]

    So far as the evidence in [53] above is concerned, the question of whether the applicant could have improved his surveillance techniques is quite irrelevant.

19. [90]

    In these circumstances, in my opinion, the evidence to which I have referred in the immediately preceding sub-paragraphs was inadmissible. First, to the extent that it records the applicant’s movements on the day in question, the identification of these movements does not involve the application of any expert skill and judgment. Second, although it may have been appropriate for the jury to be informed of the nature of surveillance techniques, the evidence given did not have the additional degree of specialised knowledge that was referred to by Gummow and Callinan JJ in Velveski at [158] (set out at [75] above). Nor did the witness identify the expertise on which he concluded that the applicant was the lookout for threats posed by Mr Alameddine’s associates or the police, or identify any assumption he made which entitled him to reach this conclusion. Indeed, on one view, his evidence seemed to be based on the assumption that Mr Alou was engaged in criminal activity and the applicant was there to assist him. CIN 1877 did not have a basis for making that assumption at the time he gave his evidence.

20. [91]

    I do not think this conclusion is inconsistent with Kingswell. Kingswell concerned the evidence of an officer experienced in surveillance techniques who observed the accused driving and stated that what he observed the applicant doing amounted to counter-surveillance techniques. The relevant evidence in Kingswell was as follows:

21. [92]

    That is quite different from the present case where the officer looked at video footage and not only expressed his view as to what was occurring but opined on the motivation for it. The evidence went well beyond the officer’s expertise and, in effect, involved the presentation of the Crown case.

22. [93]

    I have referred to the remarks made by the trial judge in his Honour’s voir dire judgment (set out at [59] above) to the effect that the evidence would assist the jury in considering something they may have otherwise regarded as odd or unusual. However, with the explanation of surveillance, counter-surveillance and anti-surveillance techniques, the jury was well able to reach the conclusion for the applicant’s activities on 2 October 2015. Perhaps most telling is the remark made by the Crown in its closing address to the jury to the effect that the jury had been to the locations in question during the course of a view and was in a better position than CIN 1877 to consider whether the applicant was conducting counter-surveillance or acting as a support person.

23. [94]

    It should be noted finally that it is correct, as the Crown pointed out, that the challenge made on this ground of appeal was to the ruling by the trial judge on the voir dire rather than the evidence which was in fact led at the trial. However, the appeal was argued by reference to the evidence given. Further, it does not seem to me that in circumstances where a general objection to the evidence had been rejected, it was incumbent to separately object to each part of the evidence, such that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) would apply.

24. [95]

    In these circumstances, this ground of appeal has been made out.

Ground 4: His Honour erred in permitting the Crown to tender issue 12 of the ISIS publication known as “Dabiq” in circumstances where the applicant did not have a copy in his possession and had neither seen nor obtained a copy of the magazine.

1. [96]

   The relevant publication (Exhibit L) included a Foreword which stated:

2. [97]

   It was not suggested the document was in the possession of the applicant.

3. [98]

   The trial judge ruled Exhibit L was relevant and admissible on the following basis:

4. [99]

   In a subsequent judgment, R v Dirani (No 4) [2018] NSWSC 888, a submission that the document should be excluded under either s 135 or s 137 of the Evidence Act was rejected. The submissions in support of this ground of appeal do not challenge that ruling.

5. [100]

   The applicant submitted that the fact that the murder was a terrorist act was not in issue. It was submitted that Exhibit G (a note extolling Islamic State) found on Farhad Mohammad’s body made it clear that he intended to commit a terrorist act. It was further submitted that even if it was in issue, Exhibit L could not be used to retrospectively cloak the event which occurred with a particular characterisation. In these circumstances it was submitted that it was not relevant. It was also submitted that it was arguably hearsay.

6. [101]

   The Crown submitted that the trial judge was correct in finding where the terrorist act in question was said to have been carried out in the name of Islamic State, it was relevant that an Islamic State publication had embraced it and praised Farhad Mohammad for what he had done.

7. [102]

   The Crown submitted that the evidence was admissible for a non-hearsay purpose.

Consideration

1. [103]

   The applicant was charged with conspiring to do acts in preparation of a “terrorist act” (as defined in s 100.1 of the Criminal Code).

2. [104]

   In the present case, the relevant act was the obtaining of a gun to be given to Farhad Mohammad to enable him to kill an innocent civilian. It was necessary to show that act was a terrorist act. The embracing of the act by a publication of ISIS is evidence in support of that proposition. It was thus relevant within the meaning of s 55 of the Evidence Act as being capable of rationally effecting the probability of the act being a terrorist act.

3. [105]

   The document was not tendered for a hearsay purpose. Its relevance lies in the fact that it was a statement made in a publication of ISIS, not the truth of its content.

4. [106]

   As I indicated, no reliance was placed on s 135 or s 137 of the Evidence Act in the submissions filed in support of this ground. In the circumstances, it has not been made out.

Ground 5: His Honour erred in permitting the Crown to tender the applicant’s version of the 1.53pm conversation tendered by the applicant in the first trial.

1. [107]

   This ground relates to the transcript of a recorded conversation which took place between Mr Alou and the applicant at 1.53pm whilst they were sitting in their motor vehicles parked next to each other at Merrylands Oval. The recording device was in Mr Alou’s vehicle.

2. [108]

   At the first trial of the applicant, each of the applicant and the Crown tendered a transcript of the conversation which was said to have taken place. In each of the versions tendered, the following words were attributed to Mr Alou, “[b]ut it will affect, the brother, Parra, affect the masjid, mine, it will affect me, do you know anything?”.

3. [109]

   At the trial the subject of the present appeal, the Crown tendered a similar version, whereas the applicant tendered a different version, “[b]ut it will affect the brother, Kawa, affect the masjid, mine, it will affect me, do you know anything?”. The Crown also tendered the version tendered by the applicant at the first trial. This was the tender the subject of the objection.

4. [110]

   In dealing with the objection (R v Dirani (No 29) [2019] NSWSC 64), the trial judge noted that Kawa Alou was the brother of Raban Alou. His Honour also noted that in opening to the jury, Senior Counsel for the applicant after reading out the version propounded by the applicant said that the defence case is that the conversation might be “about a dispute between Mr Raban Alou and his brother Kawa who were in a major dispute at that time”.

5. [111]

   The trial judge noted that that picked up certain evidence concerning a dispute between Mr Alou and his brother relating to Mr Alou’s marriage to Ms Sharna Perger.

6. [112]

   The trial judge at [29] of his judgment stated that he proceeded on the basis that the content of the conversation was subject to “close consideration” by the parties at the first trial. His Honour rejected the submission that the Court should approach the issue on the basis that the applicant was in no better position than anyone else to detect what was said. The trial judge stated at [35] that the applicant was a party to the conversation and listening to the recording would operate to assist him to refresh his memory. His Honour said that the use of the word “Kawa” instead of “Parra” was relevant to an important issue in the trial, namely, what was said in the conversation and what it revealed concerning the accused in a manner which may or may not incriminate him.

7. [113]

   The trial judge stated at [37] that it was appropriate to proceed, consistent with R v Birks (1990) 19 NSWLR 677 at 682, on the basis that the applicant’s legal representatives acted on his instructions, including an instruction that the word “Parra” was used and that there had been a change in instruction in that “Kawa” was used.

8. [114]

   In these circumstances, the trial judge concluded that the transcript sought to be tendered constituted an admission by reason of s 87(1)(a) of the Evidence Act of the use of the word “Parra” in the car-to-car conversation. His Honour concluded that the admission of the transcript would not be unfair to the applicant such as to require its exclusion under s 90 of the Evidence Act. His Honour noted the objection based on s 135 of the Evidence Act and concluded that the probative value was not outweighed by the danger that the evidence might be unfairly prejudicial to a party, or misleading or confusing. So far as the objection was based on s 137 of the Evidence Act, his Honour made the following remarks:

9. [115]

   The applicant suggested that the object of the tender was to damage the applicant’s credibility by making the applicant appear dishonest in changing his case. He submitted that there was no evidence the applicant had changed his instructions.

10. [116]

    It was submitted that it was unfair to submit that because the applicant was a party to the conversation he should have known its contents. In that context, it was pointed out that the conversation occurred in October 2015, the first trial during June 2018, and the second during February 2019. It was submitted in those circumstances that it was unfair to assume the conversation was of such significance that the applicant would remember it.

11. [117]

    It was also contended that the trial judge erred in carrying out the balancing exercise required by s 135 and s 137 of the Evidence Act. It was submitted that whilst the conversation was of importance, the balancing exercise required consideration of the version the applicant no longer relied upon. It was submitted that these conversations had no probative value at all, except to call the applicant’s instructions into question.

12. [118]

    It was also emphasised that the trial judge directed the jury that the evidence was the recording itself. It was submitted that for the Crown to seek to elevate the transcript into actual evidence in those circumstances was unfair.

13. [119]

    The Crown submitted that it was open to the trial judge to infer that the version tendered at the first trial was adduced on the instructions of the applicant. It submitted that no evidence was led to the contrary. The Crown also submitted that there was no clear challenge to the proposition that the transcript was produced with the authority of the applicant.

14. [120]

    So far as s 90 of the Evidence Act was concerned, the Crown pointed out that the focus of the test under s 90 is whether the use of the evidence at the trial would be unfair. It was submitted that it was not unfair simply because the evidence might put the accused in a position where he was compelled to provide an explanation to the jury.

15. [121]

    The Crown submitted that the admissions were made voluntarily and there was no evidence that any pressure was applied or that the applicant was labouring under a misapprehension. It submitted in these circumstances that it was not unfair.

16. [122]

    So far as s 137 of the Evidence Act was concerned, the Crown submitted that it was a decision in respect of which the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 governed appellate review. It was submitted that the potential effect of damaging the applicant’s credibility did not ground any appellate intervention. It was noted that the evidence was used solely to attack the substitution of the word “Kawa” for “Parra” and rebut the contention that the conversation was about a dispute Mr Alou had with his brother.

17. [123]

    The Crown also rejected the contention that the trial judge applied the wrong test, pointing to the fact that the trial judge made clear that the benefit of the evidence was to enable the jury to have different versions available to them, including an understanding of the way “Kawa” replaced “Parra”.

Consideration

1. [124]

   It was open to the trial judge to conclude that the transcript of the recorded conversation could be tendered as an admission.

2. [125]

   The relevant representation was that during the particular portion of the conversation, the word “Parra” (as distinct from “Kawa”) was used. It did not appear to be contended that if the statement could be attributed to the applicant, it was not an admission against interest to satisfy the definition of admission in the Evidence Act.

3. [126]

   Further, it seems to me that the legal advisers who tendered the transcript in the first trial had authority to make the statement by virtue of either s 187(1)(a) or s 187(1)(b) of the Evidence Act. As was pointed out in Commonwealth v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 377 ALR 191 at [18], s 87(1)(b) extended the range of agents whose representations may be treated as admissions against their principal to circumstances where the representation related to a matter within the scope of their authority (see also Edelman J at [54]–[55]). In the present case, the tender of the transcript of the conversation fell within that authority. It can also be readily inferred that the legal advisers did so on the client’s instructions.

4. [127]

   Nor do I think the evidence was unfair within the meaning of s 90 of the Evidence Act. The fact that the transcript was prepared some time after the conversation took place did not make the tender unfair. As the trial judge pointed out, the recording would have been available to the applicant to refresh his memory of what was said, particularly having regard to the events which evidently occurred on a significant day. Further, as was pointed out in EM v The Queen (2007) 232 CLR 67; [2007] HCA 46 at [107], the central question is whether the tender of the admission was unfair having regard to the circumstances in which they were made. There is nothing other than the length of time between the conversation and the preparation of the transcript to demonstrate circumstances which made the admission of the evidence unfair. As I have indicated, the length of time does not do so.

5. [128]

   Nor do I agree that the tender was unfair because it was only directed to the credibility of the applicant. The applicant’s case was that the conversation was directed to a dispute between Mr Alou and his brother, Kawa. The fact that a participant in the conversation had effectively produced a different recollection previously is directly relevant to what the conversation in fact involved. Of course, as the trial judge pointed out, it was ultimately a matter for the jury to form their view of what was said in the recording, but that does not mean they could not be assisted in that regard by a statement of a participant in the conversation as to what was in fact said.

6. [129]

   Further, the fact that the effect of the admission was to require the applicant to make a forensic decision as to whether to give an explanation does not make the tender unfair (R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121 at [75] and [153]–[154]; Haines v R [2018] NSWCCA 269 at [270]–[273]).

7. [130]

   So far as s 135 and s 137 of the Evidence Act are concerned, I do not think that the trial judge misapplied the balancing exercise his Honour was required to undertake. The trial judge correctly considered the probative value of the evidence sought to be tendered compared to its prejudicial effect.

8. [131]

   The probative value of the evidence was significant. If accepted, it would assist the jury to determine whether or not the conversations had the innocent purpose contended for by the applicant. I have dealt with the suggested prejudicial effect in dealing with s 90 of the Evidence Act. In my opinion, having regard to these matters, the trial judge was correct in declining to reject the tender under either s 135 or s 137 of the Evidence Act.

9. [132]

   I have reached this conclusion irrespective of whether the appellate review should be limited to whether there is an error in the House v The King sense, or whether the Court should undertake its own review (EM v The Queen at [95]; CA v R [2017] NSWCCA 324 at [98]; cf Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195 at [76]). On either basis, I would conclude that this ground has not been made out.

The proviso

1. [133]

   For the proviso in s 6 of the Criminal Appeal Act 1912 (NSW) to apply, it is necessary for the Crown to satisfy the Court that notwithstanding the erroneous admission of the evidence of CIN 1877, no substantial miscarriage of justice has actually occurred.

2. [134]

   The principles surrounding the operation of the proviso were recently reviewed by this Court in Rogerson v R [2021] NSWCCA 160 at [389]-[412] and it is not necessary to repeat what is set out in that judgment.

3. [135]

   In Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 17, the plurality emphasised that it is necessary to consider the nature and effect of the error in every case because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. They stated in that case (at [15]) that Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 “does not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction … regardless of the apparent strength of the prosecution case”. The plurality emphasised (at [16]) that it was not possible to describe “the metes and bounds of those wrong decisions of law” which will occasion a substantial miscarriage of justice notwithstanding the cogency of proof of the accused’s guilt. They emphasised that the fundamental question was whether there was a miscarriage of justice.

4. [136]

   In Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28, the plurality pointed out (at [38]) that “some errors will establish a substantial miscarriage of justice even if the appellate court considers the conviction was inevitable.”

5. [137]

   In my opinion, a substantial miscarriage of justice occurred in the present case. A critical part of the Crown case was the events involving the applicant which occurred on 2 October 2015. As I indicated in dealing with ground 3, the evidence was tainted by the inadmissible commentary by CIN 1877 of the significance of the events on that day, coupled with speculation as to the reason for the applicant’s conduct; see, for example, at [80] and [82] above. It is impossible to assess the extent that the jury took this evidence into account in reaching its conclusion.

6. [138]

   In these circumstances, a substantial miscarriage of justice has occurred and the proviso should not be applied.

Conclusion

1. [139]

   In the result, I would make the following orders:

   1. (1)

      To the extent necessary, grant the applicant leave to appeal against his conviction.

   2. (2)

      Appeal allowed.

   3. (3)

      Quash the conviction and order that there be a new trial.

2. [140]

   PRICE J: I agree for the reasons enunciated by the Chief Justice that Ground 3 of the appeal has been established but Grounds 2, 4 and 5 have not been made out.

The applicant’s submissions

1. [141]

   In submitting that the verdict is unreasonable, the applicant contended that there were key deficiencies in the Crown case. The essence of the applicant’s submission was that the Crown had engaged in reverse engineering; starting from the conclusion that the applicant was involved in the conspiracy but had worked backwards to find evidence to support that proposition.

2. [142]

   Whilst accepting that in a circumstantial case all of the circumstances should be considered holistically, the applicant emphasised that “the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence”. [1]

3. [143]

   The applicant provided a table detailing 19 inferences which the Crown asked in its closing address the jury to draw, which were submitted to be not open to the jury. These inferences were submitted to be highly speculative, sometimes made without evidence, or inherently implausible.

4. [144]

   The applicant pointed out that the defence case at trial was that all of his behaviour could be readily explained.

5. [145]

   The applicant emphasised that a critical aspect of the defence case was the absence of evidence, specifically of:

6. [146]

   The applicant contended there was “a distinct lack of objective facts beyond the applicant’s behaviour on 2 October which the Crown could legitimately ask the jury to draw inferences from”. [2]

7. [147]

   Another submission was that the Crown’s closing argument moved away from the Crown’s opening address in terms of its reliance on the applicant’s presence with Mr Alou on 2 October 2015 between 1:26pm and 2:38pm as being the “crux” of the Crown case.

8. [148]

   The applicant contended that everything in the Crown case pivoted on the jury accepting that his presence on 2 October 2015 was in furtherance of a terrorist plot. The applicant submitted the Crown case on this point made no sense. The applicant’s argument was that the Crown case was predicated on the assumption that Mr Alou wanted someone to act as his “cockatoo”, a role that he arranged for the applicant to fulfil; however, there was no evidence on which that assumption could be made. The applicant pointed out there was no evidence that Mr Atai fulfilled a “cockatoo” role when Mr Alou made contact with X3 and he went alone to see X2 and, on the morning of the shooting, Mr Alameddine.

9. [149]

   The applicant submitted that but for Mr Alameddine bringing the wrong size weapon, the subsequent “convoys” to Warwick Road, Merrylands Park and Mr Alou’s flat in Lane Street, Wentworthville would never have occurred. The only “convoy” would have been the trip from the Parramatta Mosque to Jones Park – a trip which, the applicant submitted, was entirely consistent with Mr Alou and the applicant intending to have lunch together afterwards.

10. [150]

    The applicant pointed out that Mr Alou had made numerous attempts to obtain a weapon without the applicant. The applicant submitted that the Crown’s hypothesis as to his presence between 1:26pm and 2:38pm on 2 October 2015 assumes that he knew what Mr Alou was doing and he had agreed to a particular role, but even if the Crown’s version of the conversation at 1:53pm is accepted, it shows Mr Alou asking the applicant about what he had been told already. It was contended that such a question was at odds with the applicant being part of a conspiracy as he would be expected to know where and when it was to take place.

11. [151]

    Although it was accepted that the applicant had “a cache” of extremist material on his electronic device, the applicant submitted that this evidence could neither prove his agreement to participate in the terrorist conspiracy nor could this material be used by the jury to plug evidentiary holes in the Crown case.

12. [152]

    As to the applicant’s post offence conduct, the applicant referred to the Crown making much of his posting a message about “snitching” after the shooting on 4 October 2015. The applicant submitted that a proper reading of the message showed that it was not a comment he had written, but rather a comment someone else had written.

13. [153]

    The applicant made further reference to the Crown making much of the applicant not showing any sympathy for either the family of Mr Cheng or Farhad Mohammad. The applicant asked rhetorically why should he have reacted in a particular way when he did not know either person. The Crown’s submission that the applicant’s lack of what would be an expected response was indicative of guilt was highly speculative and unfair.

14. [154]

    A further submission was made that the applicant’s first reaction after the hearing of the shooting was not, as the Crown contends, to post a picture with the caption “May Allah never take away our prayers” and a story about dead United States (US) army personnel, but Exhibit BM commencing at page 75, quoted below at [380]-[381], shows messages sent by the applicant before the picture. The applicant submitted that those messages were consistent with someone learning about the event for the first time and displaying surprise.

15. [155]

    The applicant contended that there was no basis for the Crown’s submissions regarding the posting of the “May Allah never take away our prayers” text or the story about five dead US service members. The applicant argued that he regularly posts “bursts of photos or sayings that interest him” and to focus on 2 October 2015 and to seek to draw something sinister from it did not reflect the entirety of the evidence. [3] The applicant argued that the Crown had sought to minimise his initial reaction to learning about the shooting because it did not fit with the Crown case theory that the applicant knew it was going to happen.

16. [156]

    The applicant submitted that at its highest, the Crown case was able to demonstrate that he had a collection of extremist material and his presence on 2 October 2015, but that did not prove his guilt. The applicant argued there was a lack of evidence with which the jury could find proved beyond reasonable doubt all of the elements of the offence.

17. [157]

    Further submissions were made as to particular aspects of the Crown case.

18. [158]

    It was the applicant’s case that he gave Mr Alou money to buy food and not a weapon as had been contended by the Crown.

19. [159]

    The applicant referred to Detective Sergeant Forsyth accepting in cross-examination that at 9:22am on 29 September 2015 Ms Perger sent a text message to Mr Alou stating “I put the 50 in ur wallet”. [4]

20. [160]

    Exhibit 1 “Alou History of needing/borrowing money (2/5/2015 to 3/10/2015)” is a schedule of messages and voice calls mainly between Mr Alou and the applicant which relate to talk about financial matters. The applicant in particular points to:

21. [161]

    The applicant submitted that the message quoted at [254] below “[p]ick up the millions” was consistent with the money being offered simply to help Mr Alou out. Exhibit 32 was tendered in his case which sets out the applicant’s use of the term “millions”: “We got millions” in exchanges with Mr Alou on 28 July 2015; [5] the term “Millionaire” [6] on 6 September 2015; and the term millions again on 4 October 2015: “Cause I got millions”. [7]

22. [162]

    The applicant further pointed to the conversation quoted at [270] below in which Mr Alou complains about having no food at his house and the applicant replies, “What did you do with the thing? You’re supposed to get groceries this that” at a time when the applicant had already lent Mr Alou $50. The applicant’s case was that his question was in effect, “What did you do with the $50 that I gave you?” The applicant submitted that such a question would be inconsistent with his lending money for the purchase of a weapon.

23. [163]

    The applicant contended there was no evidence that the $660 cash found by police in his bedroom during the execution of the search warrant had anything to do with the purchase of a firearm.

24. [164]

    The applicant’s case was that he attended the Parramatta Mosque on 2 October 2015 because his normal mosque at Macquarie University was closed and it was an informal arrangement. Senior Counsel for the applicant at trial pointed to the applicant’s exchanges with Mr Alou and Mr Catovic on 25 September 2015, where he stated, “Uni closed down”, “I’m trying to find a new spot” and “[p]robably regular going to start being [P]arramatta”. [8] The applicant referred to the WhatsApp exchange on 1 October 2015 quoted at [309]-[310] below. The applicant contended that while they were outside the Parramatta Mosque, he and Mr Alou made an arrangement to have lunch together.

25. [165]

    The applicant submitted that the recording of the brief conversation between he and Mr Alou quoted at [330] below was consistent with that arrangement being made, as were Mr Alou’s conversations with Mohammad Salihy quoted at [363]-[364] below and Ms Perger quoted at [362] below.

26. [166]

    A further submission was that the applicant’s conduct was inconsistent with him acting as a lookout and consistent with him waiting for Mr Alou so that they could have a meal together. Furthermore, the defence case was that at each of the places where Mr Alou met Mr Alameddine, Mr Alou walked away from the applicant to allow him to have a private conversation with Mr Alameddine. It was submitted that the defence took the jury to each of the three different locations and explained the defence case in relation to each event.

27. [167]

    The applicant referred to the competing versions of the 1:53pm car to car conversation. The applicant observed that the first part of the conversation was a lengthy discussion about “Macca’s” which supported the applicant’s case that their intention was to eat at Macca’s.

28. [168]

    The applicant referred to the different versions of the conversation which are quoted at [342] below. The applicant pointed out the principal difference in the versions is “Kawa” and not “Parra” and the conversation was about a dispute between Mr Alou and his brother Kawa concerning the marriage to Ms Perger. The reference to “heat” concerned Kawa who was agitated about Mr Alou’s conduct.

29. [169]

    In making this argument the application relied on Exhibit CF, which sets out a series of messages involving Mr Alou, Ms Perger, the applicant and others during the period 21 September to 30 September 2015. The applicant submitted that Ex CF demonstrated his role in attempting to mediate issues between Kawa and Mr Alou. Ex CF was said to demonstrate that as at late September 2015, Mr Alou was in dispute with his family over a car and his marriage to Ms Perger and this included Kawa threatening to bash both Mr Alou and Ms Perger.

30. [170]

    The applicant submitted that significantly, the first time police heard the recording, they also heard the word “Kawa”.

31. [171]

    The applicant submitted that the possession of extremist material was not illegal and did not make a person a terrorist. Further, the applicant’s continued uploading of such material in the days before the shooting was inconsistent with his knowledge of a planned terrorist attack.

32. [172]

    A further submission was that if the applicant had been involved in purchasing the gun, he would not have alerted police to the fact that he knew he was under surveillance and confronted them. The applicant contended that if he had been involved, he would have destroyed the extremist material on his computer, phone and discs in his car.

The Crown’s submissions

1. [173]

   The Crown placed emphasis on the whole of the evidence and submitted that the guilt of the applicant was the only reasonable and rational inference to be drawn when the evidence was considered in combination. The Crown pointed out that in addition to hearing from CIN 1877, the jury attended a view of all the relevant locations as to the movements on 2 October 2015 and was in a superior position to this Court to assess the question of whether the applicant was conducting counter-surveillance or playing a support role to Mr Alou on that day.

2. [174]

   The Crown argued that each of the matters emphasised by the applicant in submissions did not advance his case. In written submissions, the Crown advanced the following arguments:

   1. (1)

      There was a large amount of evidence beyond the applicant’s behaviour on 2 October 2015. The Crown contended that its case was not limited simply to possession of extremist material and knowledge of Mr Alou and Mr Atai. There was, the Crown submitted, significant material of the applicant’s involvement prior to 2 October 2015. Further, the Crown argued that the jury would have been entitled to convict the applicant based on his involvement on 2 October 2015.

   2. (2)

      It was the applicant (not the Crown) that continually sought to elevate the significance of the counter-surveillance evidence on 2 October 2015. Express or implied applications for a Shepherd direction that the applicant’s role as a lookout on 2 October 2015 be treated as or akin to an indispensable fact were refused by the trial judge. Furthermore, the trial judge made it plain that, at least in the circumstances where no argument was to be advanced that the Crown had changed a case put in opening, it was the Crown closing that needed to be addressed.

   3. (3)

      The Crown contended that it is simply incorrect to say that everything in the Crown case pivoted on the applicant’s presence on 2 October 2015 being in furtherance of a terrorist plot. The Crown submitted the jury could have been satisfied independently of the events of 2 October 2015 that the applicant was providing encouragement, support and money to Mr Alou to further Mr Alou’s terrorist activities. In any event, where the only alternative hypothesis put by Senior Counsel for the applicant was that the applicant’s presence was for the purpose of having lunch with Mr Alou and “the steadfast refusal to accept the obvious inference available from the 1.53pm conversation that the [a]pplicant knew what [Mr] Alou was doing”, the Crown argued that it was clearly open to the jury to accept the applicant’s activities on 2 October 2015 were in furtherance of the conspiracy. [9]

   4. (4)

      The fact that Mr Alou may have made earlier attempts to obtain the weapon was of no moment when all the evidence is considered.

   5. (5)

      The Crown referred to the applicant’s acceptance that he possessed a large amount of extremist material and it was open to the jury to find that he was “an extreme Salafist and supporter of violent jihad”. The Crown case was partly circumstantial and the fact that the applicant was an extreme Salafist and supporter of violent jihad was relevant evidence that renders more probable that he would have reached the alleged agreement.

   6. (6)

      The applicant addressed the evidence of his activities following the terrorist act on 2 October 2015 by selectively extracting part of the events in question and submitting that an alternative explanation consistent with innocence was open, namely that the applicant had expressed a level of surprise consistent with him learning about the attack for the first time. The Crown submitted that the jury was more than entitled to reject that submission when those exchanges were seen in context and in light of all the evidence.

   7. (7)

      As to the applicant’s table of inferences which were said to be speculative, the Crown submitted that each of the inferences were available when considered in light of all the evidence. The Crown contended that the applicant’s argument depended on the fundamentally flawed proposition that all the jury were permitted to find was that the applicant had possession of extremist material and was present on 2 October 2015.

3. [175]

   The Crown pointed out that at no stage did Senior Counsel for the applicant at trial raise any issue with the inferences sought to be drawn or suggest that any of the submissions made by the Crown should be withdrawn. The Crown contended that the applicant’s alternative explanations for individual inferences amount to an attempt to dissect the Crown case and approach the circumstantial evidence in a piecemeal fashion. The Crown submitted that it was not sufficient for the applicant to simply argue that the jury could have drawn alternative inferences. To succeed on Ground 1, the Crown contended the applicant must demonstrate that the jury should have drawn a different conclusion with respect to the applicant’s guilt on the whole of the evidence. The Crown submitted that the applicant’s alternative explanations do not compel the conclusion that there was a reasonable explanation inconsistent with the Crown case that could not be excluded and which the jury should have accepted.

4. [176]

   As to the payment of money and knowledge of the gun, the Crown contended that on and from 27 September 2015, the available inference was that Mr Alou sought money to purchase a firearm from various different people and the applicant knowingly contributed to the purchase of a firearm. It was submitted that the inference was available taking the evidence as a whole, including the following matters:

Legal Principle

1. [177]

   The principles on which a Court will set aside a verdict as unreasonable were set out by the plurality (French CJ, Gummow and Kiefel JJ) in SKA v The Queen [10] as follows:

2. [178]

   In R v Baden-Clay, [11] the High Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) emphasised the regard that must be had to the constitutional function of the jury as the tribunal of fact:

3. [179]

   More recently in Pell v The Queen, [12] the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) made the following observations about the function of the Court of Criminal Appeal at [39]:

4. [180]

   The High Court went on to say at [44]-[45]:

Consideration

1. [181]

   The jury returned a verdict of guilty on the first count of the indictment which was in the following terms (omitting the particulars of the terrorist act (or acts)):

2. [182]

   In order to find the applicant guilty of the crime of conspiracy to do an act in preparation for a terrorist act or acts under the Criminal Code (Cth), the members of the jury were instructed by the trial judge that they must be satisfied beyond reasonable doubt of the following elements: [13]

3. [183]

   The trial judge’s careful instructions to the jury included that for the element in paragraph (f), that is, the applicant intended the acts in preparation to be in preparation for a terrorist act, they must be satisfied beyond reasonable doubt that: [14]

4. [184]

   Further instructions to the jury by the trial judge included that all of the elements of the charge, except element (c), that the Crown was required to prove beyond reasonable doubt were “real issues” in the trial. The jury was instructed for element (c), proof was not required that it was the applicant. What was required, his Honour said, was that at least one other party intended that acts in preparation for a terrorist act or acts would be carried out, which was not in dispute. His Honour reminded the jury that the applicant’s case had been conducted on the basis that “certainly Raban Alou, Milad Atai, Farhad Mohammad, for that matter, Shadi Mohammad, would be persons who may fit within that category”. [15]

5. [185]

   As to element (e), the jury was instructed that this was put in the alternative and they had to be satisfied either that the applicant or at least one other party to the agreement carried out an observable physical act in preparation for a terrorist act. His Honour told the jury that the applicant did not dispute that Mr Alou, Mr Atai and Farhad Mohammad had carried out such an act but what was in issue was the Crown’s contention that the applicant himself had engaged in observable physical acts in his conduct before and on 2 October 2015, including his travelling around the streets of Sydney with Mr Alou. However, his Honour emphasised that element (c) did not require proof that the applicant acted in such a way.

6. [186]

   In relation to the essential characteristics of a terrorist act, his Honour told the jury that there was no issue in the trial “that persons involved, such as Raban Alou and Milad Atai and Farhad Mohammad, acted in preparation for the commission of a terrorist act which would satisfy all of these elements”. [16]

7. [187]

   The applicant does not complain about any of the trial judge’s directions. His case before the jury was that on 2 October 2015, Mr Alou was on a venture of his own in acquiring the gun; that the applicant was merely following his friend with the aim of having lunch with him, without any involvement in the purchase of the gun. Mr Alou was the principal organiser of the criminal conspiracy with Mr Atai, Farhad Mohammad and Shadi Mohammad and the applicant was not, at any time, a party to the conspiracy, and that he had no role whatsoever in the purchase of the gun by Mr Alou that was used to kill Mr Cheng. Further, his mere presence with Mr Alou during the period 1:26pm to 2:38pm on 2 October 2015 could not be elevated to demonstrating his support for Mr Alou and the terrorist conspiracy.

8. [188]

   The applicant did not give evidence in the trial but documentary material was tendered in his case (Exhibits 1-32). Statements of Admissions made by the applicant pursuant to s 184 of the Evidence Act 1995 (NSW) became Exhibits B and C.

9. [189]

   The applicant’s contention in this Court is there was a lack of evidence with which a jury could find proved beyond reasonable doubt elements (a), (b), (d) and (f) of the offence.

10. [190]

    In considering the applicant’s contention that the jury’s verdict is unreasonable, my review of the evidence will not include those parts of the evidence of CIN 1877 which were not admissible (see [80]-[94] above). However, unlike this Court, the jury has had the advantage of a view of the locations to which the applicant and Mr Alou travelled on 2 October 2015.

11. [191]

    Notwithstanding the jury’s satisfaction that all of the elements of the offence had been established beyond reasonable doubt, the question remains whether upon an examination of the whole of the record, this Court is satisfied that the jury acting rationally ought to have entertained a reasonable doubt as to the applicant’s guilt.

12. [192]

    The Crown case was that the applicant, Mr Alou and Mr Atai had different roles in the conspiracy and each performed acts in furtherance of the conspiracy. Mr Alou took various steps to attempt to source a gun from a person known as “X2”, a person known as “X3” and Mr Alameddine. He raised funds for the purchase of the firearm which he obtained on 2 October 2015 from Mr Alameddine. A further aspect of the Crown case concerning Mr Alou was that he attempted to source an ISIS flag from a person known as “X4”.

13. [193]

    The principal role that Mr Atai played was his assistance to Mr Alou in obtaining a gun. He attended meetings with X2 and X3. Furthermore, it was the Crown case that Mr Atai assisted in the attempt to source an ISIS flag from X4, allowed his phone to be used by Mr Alou and provided money to Mr Alou at the time Mr Alou was seeking finance for the gun.

14. [194]

    In the Crown’s closing address to the jury, the Crown submitted that the applicant had provided assistance to Mr Alou in furtherance of the conspiracy in a number of ways which he identified. Firstly, by providing support and encouragement to Mr Alou in the lead up to the meetings on 2 October 2015. The Crown said that the applicant did that by postings on WhatsApp and by various phone calls. The Crown said that the applicant provided “emotional, religious and ideological support for Mr Alou in the lead-up to those meetings”. [17]

15. [195]

    Secondly, the Crown case was that the applicant provided money to Mr Alou to assist in the purchase of the gun.

16. [196]

    Thirdly, the Crown said that the applicant assisted Mr Alou by accompanying him to the meetings with Mr Alameddine on 2 October 2015. The Crown put to the jury that:

    1. (1)

       the applicant remained present in the vicinity of those meetings whilst they occurred;

    2. (2)

       he remained present and observed Mr Alou’s motor vehicle and its contents during those meetings;

    3. (3)

       he remained present and observed Mr Alameddine’s bicycle and whatever it was on the handlebar in the plastic bag; and

    4. (4)

       he provided cover and counter-surveillance for Mr Alou in obtaining the gun.

17. [197]

    The Crown case relied upon direct and circumstantial evidence. As was observed by Gibbs, Stephen and Mason JJ in Barca v The Queen: [18]

18. [198]

    In The Queen v Hillier, [19] Gummow, Hayne and Crennan JJ explained at [46]:

19. [199]

    The applicant’s intention and belief, which are elements of the offence, had to be proved by the Crown by inference. It is well established that a reasonable inference “must rest upon something more than mere conjecture”. [20] It is the applicant’s complaint that in drawing inferences, the Crown invited the jury to engage in pure speculation.

20. [200]

    In Lane v R, [21] this Court (Bathurst CJ, Simpson and Adamson JJ) discussed the distinction between inference and speculation. The Court said at [109]-[110]:

21. [201]

    In his closing address, the Crown dealt with the Crown case in three parts: firstly, what the Crown said was evidence of how the applicant thought; secondly, evidence of how the applicant acted; and thirdly, evidence of how the applicant reacted.

22. [202]

    The Crown put to the jury that the applicant’s conduct after the shooting was consistent with somebody who knew what was going to happen, was impressed with what Farhad Mohammad had done and was pleased with the outcome.

23. [203]

    The Crown reminded the jury that the applicant’s admissions pursuant to s 184 of the Evidence Act 1995 (NSW) (Exhibits B and C) included that he had “in his possession videos and documents which supported Islamic State and which demonstrated his interest in events occurring in the middle east, radical Islam, jihad and other extremist Islamic material”. [22] A further admission was “[t]hat at all relevant times the [applicant] was involved in a closed WhatsApp discussion group in which he and other [sic] shared videos, photographs and links to material consistent with his interest in Islamic State, the middle east, radical Islam, jihad and other extremist Islamic material”. [23]

24. [204]

    It was the Crown case that the applicant had more than an interest in radical Islam, jihad and extremist material. The Crown put to the jury that the evidence established that the applicant, as at 2 October 2015, actively held extremist views; was a supporter of ISIS; was in favour of violent jihad against non-believers; was a believer that Muslims who died during violent jihad attained martyrdom and entry into paradise; believed that Islam throughout the world was under attack and there was a religious obligation to respond to that attack by means of violent jihad justifying the killing of non-believers; and was an extremist Salafist.

25. [205]

    There was an abundance of evidence in the Crown case from which it was open to the jury to conclude that on 2 October 2015, the applicant was an extremist Salafist. Included in the audio discs and nasheeds seized from the applicant’s vehicle on 7 October 2015 was the “Book of Jihad”; “Anwar Al Awlaki Tribute – Taweel ash Shawq.mp4”, the content of which was a tribute to Anwar al-Awlaki; “Black Flag of Tawheed.mp4”, the content of which was pride in the ISIS flag; “Cihad Yolu.mp4”, the content of which was “The honour of jihad, there is no path shorter to paradise”; and “Irhabiyyun Anna.mp4”, the content of which acknowledges “speaker [and] viewers are terrorists and striking terror is an obligation in the book of Allah”. [24]

26. [206]

    The applicant’s phone was downloaded by police and Detective Senior Constable Eljarrar produced a review document (Ex BM). In cross-examination, Detective Senior Constable Eljarrar agreed that 25% of the downloaded images were of an extremist nature. The material, the police officer said, in Ex BM was a sample of that. It did not include everything that was of an extremist nature because the report would then be hundreds of pages long.

27. [207]

    The applicant and each of the alleged co-conspirators were, amongst others, participants of a WhatsApp chat thread known as the “Bricks” group. It was the applicant’s belief that “[a] believer is like a brick for another believer, the one supporting the other”. [25] Hence, the name “Bricks” group. Detective Sergeant Sagkol gave evidence that from the Bricks chat WhatsApp forum, everything that he believed was of “extremist ideology” [26] was downloaded into a disc described as the “Bricks Group compilation” (Exhibit BS).

28. [208]

    Dr Rodger Shanahan gave evidence that conservative Muslims were sometimes referred to as Salafists, which came from “salaf al-salih” [27] which meant “pious predecessors”. [28] He agreed there was a spectrum or range of ideology amongst Sunni Muslims, with Salafists at the extreme right and modernists at the extreme left. He explained that within Salafism there was also a spectrum. There were Salafists who would separate themselves from modern society and exist in small circles without bothering people. There was also a line of thought amongst Salafists, called jihadi Salafism, that a literal interpretation of the Koran required that non-believers were free to be attacked unless there was a peace treaty. This was a radical, violent branch of Salafism.

29. [209]

    Dr Shanahan explained that “jihad” meant struggle. This could be a struggle to be the best person or Muslim that a person could be. It could also refer to an armed struggle. It could be an offensive sense of armed jihad. A radical Salafist subscribed to the version that it was an individual obligation for observant Muslims to undertake jihad overseas or in their own country.

30. [210]

    When referring to the nasheeds seized from the applicant’s vehicle, Dr Shanahan said that a nasheed was a form of Arabic poetry in chant form without music. There were different kinds of nasheeds. ISIS had their own production company and they made military nasheeds.

31. [211]

    His evidence about the nasheed “My ummah dawn has appeared” included that it was a martial or military nasheed which spoke about the victory of Islam, and how true Muslims would be tested but needed to stay on the right path. [29] If you were killed passing the tests you would go to heaven.

32. [212]

    Dr Shanahan explained that the Book of Jihad justified the undertaking of jihad and was a bit of an instruction booklet on how to undertake jihad. His explanations of the applicant’s Bricks chat forum WhatsApp postings included that the views expressed by the applicant in relation to the Australian Federal Police (AFP) Eid dinner (Ex BM, p 27, 30-33) were views on the radical Salafist end of the spectrum. He further opined that the applicant’s view that “[h]ead chopping is part of Islam” [30] was a radical Salafist viewpoint, as was his reference to “[t]he modernist play a key role in bringing the ummah to the bottom”. [31]

33. [213]

    Dr Shanahan had heard the audio files referred to at page 55 of Ex BM, during which the applicant gave justifications for watching beheading videos. One audio file on 27 September 2015 commences:

34. [214]

    Dr Shanahan described the contents of the audio file as a radical Salafist view of transplanting what happened historically.

35. [215]

    Dr Shanahan gave evidence about a post on WhatsApp sent by the applicant to Mr Alou on 28 September 2015 at 2:59pm which read:

36. [216]

    Dr Shanahan explained that there was some religious significance to the words used in that message; “Allah is the best of planners” was a term taken from the Koran. It referred to a period where Muhammad and the early followers were under threat from their enemies, planning against them. However, God plans and God is on your side, therefore you will succeed over your enemies. Dr Shanahan said it was a common phrase used by people of Muslim faith but in the context in which the quote appeared in the Koran (it is about the enemies of the early Muslims), jihadists would often use it prior to going into combat. The notion of patience and people thinking that winning will be easy without being tested were concepts that came up in jihadist literature. He said that Anwar al-Awlaki, a member of al-Qaeda who was killed by a US airstrike in Yemen, talked about the tests that Muslims must go through quite often.

37. [217]

    It was the defence case that while the words “Allah is the best of planners…Do you think you will believe and not get tested?” could be used by jihadists, it was also a common Islamic phrase between people who are religious, with which Dr Shanahan and Detective Senior Constable Eljarrar agreed.

38. [218]

    Whilst I accept that these words could be used in general conversation, it was open to the jury to conclude from all the evidence that the applicant’s posting of the message was an expression of his extremist Salafist beliefs.

39. [219]

    Dr Shanahan said that he had seen photographs of discs in the applicant’s car which were labelled “Book of Jihad…by Anwar al Awlaki”. Dr Shanahan opined that Mr al-Awlaki’s views were on the far-right of the spectrum and represented a radical Salafist jihadist view.

40. [220]

    It is unnecessary to further refer to the evidence on this issue. In my opinion, it was well open to the jury to conclude on all of the evidence that the applicant had more than an interest in ISIS, radical Islam and other extremist Islamic material and held between 6 August 2015 and 2 October 2015 extremist Salafist views which included violent jihad against non-believers.

41. [221]

    It was the Crown’s case that prior to the meetings with Mr Alameddine on 2 October 2015 the applicant provided emotional, religious and ideological support to Mr Alou and provided money to him to assist in the purchase of a gun. For the purpose of further considering ground 1, it is necessary to consider the evidence in some detail and in chronological order.

A chronological review of the evidence

1. [222]

   The Crown pointed to various images that the applicant posted on the Bricks chat WhatsApp forum, which included the posts about the invitation to the AFP Eid dinner on 30 June 2015 and on 29 July 2015 with the text, “How many times has a small grouped overcame a larger one”. [33] On 9 July 2015, the applicant posted the following message to the Bricks chat WhatsApp forum:

2. [223]

   The exchanges between Mr Alou and the applicant in the above period included the following:

   1. (1)

      The applicant to Mr Alou (SMS sent on 2 May 2015 at 10:02:13pm): “I can get you 200 by early next week”; [34]

   2. (2)

      The applicant to Mr Alou (SMS sent on 24 June 2015 at 2:51:15pm): “I can give you 100 from what you gave me I don’t need all of it”; [35]

   3. (3)

      The applicant to Mr Alou (WhatsApp message sent on 18 July 2015 at 10:55:41pm-10:56:04pm): “How much you need…50 bux ?”; [36]

   4. (4)

      The applicant to Mr Alou (WhatsApp message sent on 18 July 2015 at 10:56:18pm): “Call Jallal tell him bring you 50”. [37]

3. [224]

   The Crown referred to the steps taken by Mr Alou and Mr Atai to obtain an ISIS flag between 14 August 2015 and 1 September 2015 and to the applicant continuing to promote various content supportive of ISIS and violent jihad.

4. [225]

   The Crown referred to the applicant:

5. [226]

   The evidence before the jury disclosed that at 7:37am on 15 September 2015, Farhad Mohammad arrived at the Parramatta Mosque carrying a black sports bag and a Nike backpack. He left the Mosque carrying his Nike backpack but left behind the black sports bag.

6. [227]

   On the same day between 12:36pm and 10:10pm, Mr Alou called the applicant ten times. Between 12:39pm and 10:40pm, the applicant called Mr Atai seven times. There is no evidence of the content of those conversations.

7. [228]

   On 16 September 2015, the applicant called Mr Alou. There is no evidence of the content of this conversation.

8. [229]

   The Bricks chat WhatsApp forum displayed a group icon image of an ISIS banner between 16 September 2015 and 21 September 2015.

9. [230]

   On 18 September 2015, Mr Alou picked up the black sports bag from the Parramatta Mosque.

10. [231]

    At 12:25pm on 18 September 2015, the applicant recorded on his iPhone a video of himself saying:

11. [232]

    On 20 September 2015, the applicant attempted to call Mr Atai once and Mr Alou called the applicant.

12. [233]

    Between 1:27pm and 1:37pm on 21 September 2015, Mr Alou, Mr Atai and Farhad Mohammad met at the Parramatta Mosque in an area not covered by CCTV cameras. The three exited using different exits. Mr Alou contacted X3, who he and Mr Atai met at 8:03pm. Mr Alou asked “Can you get anything?”, turning his hands into the shape of a pistol. The irresistible inference is that Mr Alou was speaking about obtaining a firearm.

13. [234]

    Two days later, Mr Atai and Farhad Mohammad met at the Parramatta Mosque. The applicant called Mr Alou and Mr Atai. There is no evidence of the content of those calls.

14. [235]

    On 24 September 2015, at about 2:11pm, both Mr Alou and Mr Atai contacted X2 and arrangements were made to meet that night and that it was urgent. They met at a chicken shop in Granville. Mr Alou asked X2 for a favour and that he wanted a gun. X2 asked who he had “dramas” with. Mr Alou replied, “we don’t have dramas with anyone. We can’t tell no-one”. X2 said he would ask around. [47] After finalising code words to be used, a follow up meeting was arranged.

15. [236]

    On 25 September 2015, at 8:15pm, Mr Alou called the applicant talking about car tint and doing something tomorrow. At 10:26pm, Mr Alou had a telephone conversation with his wife Zeinab (Sharna) Perger in which Mr Alou told her that he would go past Mr Atai’s home to talk about something. When Ms Perger asked why he wanted to see Mr Atai, Mr Alou said: “Do you want me to tell you everything on the phone, you want me to tell you who I want to kill tomorrow?” He went on to say:

16. [237]

    Mr Alou then said to Ms Perger that he needed Mr Atai’s advice on something and that “it is nothing to do with this”.

17. [238]

    Between 12:59pm and 1:08pm on 26 September 2015, Mr Alou and the applicant arranged to meet at the Stockland Mall at Merrylands. At around 1:43pm, the applicant changed the Bricks chat WhatsApp forum icon to an image of armed militants with the caption “RISE UP To The Call Of Ummah”. [49]

18. [239]

    Dr Shanahan gave evidence that “ummah” is a general term for the international community of Muslims. He said it did not necessarily apply only to Muslims in the Islamic State but to Muslims all over the world.

19. [240]

    At approximately 2:00pm, Mr Alou messaged X4 using WhatsApp and asked if his jumper was ready. X4 replied, “Wallah sorry brother I fully forgot about it…we’re doing Eid festival at the moment I’ll make it as soon as I can and let you know”. [50]

20. [241]

    At about 2:12pm, the applicant spoke on the phone to Mr Alou about where they should meet. The conversation included the applicant asking “Give me the street and I’ll be there” and Mr Alou responding “I don’t know because the guy…let me message him…I’m going to his house now…it only takes me ten minutes”. [51] A further conversation followed at 2:30pm in which Mr Alou said “…he’s a little bit busy so, you know”. [52] They agreed to meet at the Stockland Mall and they met there about 25 minutes later.

21. [242]

    On 27 September 2015, the applicant posted on the Bricks chat WhatsApp forum a quote from Sheikh Ahmad Musa Jibril and “Isdarat is back”. [53] Dr Shanahan gave evidence that Isdarat TV had ISIS videos uploaded on it.

22. [243]

    Hozan Alou replied to the applicant’s post that he did not like “[t]hat stuff head chopping”. [54] An exchange followed between the applicant and Hozan Alou during which the applicant told Hozan Alou it was “not a head chopping website” and that head chopping was “part of Islam”. [55] Hozan Alou enquired at 12:31pm, “where does it say in the hadith”. [56]

23. [244]

    At 12:38pm, Mr Alou telephoned Ahmed Bakhtiari and asked to borrow $200. During that conversation, Mr Bakhtiari told Mr Alou that he could lend him a maximum of $100. At 12:50pm, Mr Bakhtiari agreed to meet Mr Alou. At 12:54pm, Mr Alou was observed with a male fitting Mr Bakhtiari’s description in the vicinity of Mr Bakhtiari’s home.

24. [245]

    At 12:43pm, the applicant had uploaded on the Bricks chat WhatsApp forum an audio file stating:

25. [246]

    About a minute later, another audio file was uploaded by the applicant which commenced:

26. [247]

    At 2:14pm, Mr Alou posted on the Bricks chat WhatsApp forum “can any1 gimi 100 bucks nd ill pay em back”. [59] The applicant replied “I got 50” to which Mr Alou posted “ill take it buddy”. [60] They discussed meeting.

27. [248]

    There were further postings on the Bricks chat WhatsApp forum between Mr Alou, the applicant and Mr Atai including the link posted by Mr Atai, “Khutbah Khalifah Abu Bakar Al Baghdadi di Mosul Jum’at”. This was a speech about Syria being under the control of ISIS.

28. [249]

    Mr Alou shortly after made the following post:

29. [250]

    A footnote in the exhibit explained that “munafiqs” (“hypocrites”) were a group described in the Koran as outward Muslims who were secretly unsympathetic to the cause of Muslims and actively sought to undermine the Muslim community. “Allahu alam” means “Allah knows best”.

30. [251]

    The applicant responded:

31. [252]

    On 28 September 2015 at 8:53am, Mr Alou telephoned Mr Elkholy and asked for a loan of $100. Mr Elkholy asked Mr Alou if he had a Commonwealth Bank account but then advised against conducting the transaction electronically. Mr Elkholy said that “dodgy records will show up”. [63] Mr Alou stated he only had a Commonwealth account. Mr Elkholy replied that he would send it as “cardless cash”. Mr Alou said he was in Chester Hill and would go to an ATM where he would wait for Mr Elkholy to call with a code. At 9:09am Mr Elkholy telephoned Mr Alou, giving him a code and PIN number. A minute later, a withdrawal was made from a Chester Hill ATM machine from Mr Elkholy’s account using the cardless cash option.

32. [253]

    On the same day, between 10:15am and 10:27am the applicant posted on the Bricks chat WhatsApp forum a number of images: an image of a cat, machine gun and ISIS flag; an image of an ISIS fighter with the caption “REAL MEN ARE KNOWN IN TIMES OF HARDSHIP” [64] and an image “BOTH MUHAMMAD BIN QASIM THE CONQURER OF SINDH [and] TARIQ BIN ZIYAD THE CONQURER OF SPAIN WERE 17 YEARS OF AGE WHEN THEY CONQUERED THE RESPECTIVE COUNTRIES”. [65]

33. [254]

    Between 10:29am and 11:41am, the applicant and Mr Alou engaged in a WhatsApp chat exchange during which the applicant stated, “You didn’t come past…Pick up the millions”. [66] They subsequently met at Marsfield at 12:23pm.

34. [255]

    At 2:59pm, the post which has been quoted at [215] above was sent by the applicant to Mr Alou.

35. [256]

    Between 9:52pm and 10:01pm, the applicant changed the Bricks chat WhatsApp forum icon to an image depicting masked militants holding weapons standing in front of a large ISIS flag.

36. [257]

    On 28 September 2015, there were exchanges between Mr Alou and members of his family concerning Ms Perger and a dispute over a motor vehicle, which are contained in Ex CF. Exchanges between Kawa Alou and Mr Alou included:

37. [258]

    At 10:38am on 29 September 2015, Ms Perger telephoned Mr Alou during which she said:

38. [259]

    At about 10:41am, Mr Atai used Mr Alou’s car to drive to Mr Alameddine’s house at 11 Lockwood Street, Merrylands where he spoke to a number of unidentified males out the front of the house.

39. [260]

    At 10:58am, Ms Perger telephoned Mr Alou and told him they were at the Mosque and that:

40. [261]

    During this telephone conversation, Mr Atai’s wife could be heard in the background saying, “don’t say it over the phone”.

41. [262]

    At about 11:00am, Mr Alou telephoned his brother Hozan Alou and told him that Mr Atai would come past to give him the money Mr Alou owed him.

42. [263]

    At 12:07pm, Mr Atai entered the Parramatta Mosque and was followed by Farhad Mohammad. They remained out of camera view.

43. [264]

    At about 12:45pm, Shadi Mohammad, Farhad’s sister entered and then exited the STA Travel Centre in the Westfield Shopping Centre at Parramatta whilst Farhad waited for her. [70] They subsequently left the Westfield Shopping Centre together.

44. [265]

    It is the Crown’s case that the clear inference is that this was the occasion Shadi Mohammad booked her flight to leave Australia on 1 October 2015.

45. [266]

    There were a series of voice calls between Mr Alou and members of his family on 29 September 2015 in Ex CF. Those exchanges included at 5:54:46pm and following:

46. [267]

    Between 8:25pm and 8:26pm, the applicant sent a series of SMS messages to Mr Alou which included:

47. [268]

    At 8:52:56pm, Kawa Alou, Mr Alou’s brother called Mr Alou. This phone call can be fairly described as highly emotive and included:

48. [269]

    Between 9:09pm and 9:26pm, the applicant and Mr Alou exchanged text messages which included:

49. [270]

    At 9:29:51pm, the applicant telephoned Mr Alou. The telephone call included:

50. [271]

    It is the Crown case that following those exchanges the applicant met Mr Alou at 82 Bursill Street, where he was living out the back. It is the Crown case that Mr Alou, Mr Atai and the applicant met up at Guildford for the purpose of furthering the conspiracy in preparation for the commission of a terrorist act.

51. [272]

    Federal Agent Brett Smith gave evidence that he had been conducting surveillance on 28 September and 29 September 2015. He agreed that the subject of the surveillance was Mr Alou and the surveillance running sheet (the running sheet) for 29 September 2015 (Exhibit V) was tendered.

52. [273]

    The entries on the running sheet include at 9:49pm that “[v]ehicle AYR23W was parked and unattended in the vicinity of 82 Bursill Street, GUILDFORD” and, at 10:35pm, “Milad ATAI (ATAI) and an unknown person, not further described (NFD) walked on Bursill Street, GUILDFORD and continued onto [Marian] Street towards 64-66 [Marian] Street, GUILDFORD and were out of sight”. [83] There was evidence before the jury that vehicle AYR23W was Mr Alou’s motor vehicle.

53. [274]

    Federal Agent Smith was unable to give a further description of the unknown person or for how long the people were together. In cross-examination, the Federal Agent agreed that he was aware that Mr Alou was living at Bursill Street and Lane Street. He agreed that the distance between 82 Bursill Street and 66 Marian Street was about two blocks and about an eight minute walk depending upon how quickly you were walking.

54. [275]

    Earlier in his evidence in chief, the Federal Agent said that he was aware that 66 Marian Street, Guildford was Mr Atai’s residence.

55. [276]

    Another entry in the running sheet was that at 10.37pm, vehicle AYR23W was parked and unattended in the vicinity of 82 Bursill Street, Guildford.

56. [277]

    Terry Simmonds, an intelligence manager with the NSW Crime Commission, gave evidence in relation to cell tower activity for the applicant’s mobile phone at various times on 29 September 2015. He had produced a three page report which became Exhibit X. [84]

57. [278]

    Mr Simmonds described the map at the top of the first page of Ex X as a “heat map” which represented the frequency of cell tower registrations in a graduating colour scale from blue to red – the colour red indicated that a tower had more frequent cell registrations than another. The relevant period for cell tower registrations or “pings” of the applicant’s phone was between 9:38pm and 10:27pm on 29 September 2015.

58. [279]

    Mr Simmonds stated that both Marian Street and Bursill Street were located between the two small dots, indicating the cell towers on Woodville Road and near Guildford station. He confirmed that both Bursill and Marian Streets were within the red part of the heat map. He interpreted the map to mean that the applicant’s mobile phone was registered to both of these cell towers during the relevant period and was therefore roughly in the area represented by the heat maps. The heat map indicated there was a greater frequency of pings to the top right cell tower than the bottom left cell tower.

59. [280]

    The heat map at the top of the first page of Ex X, Mr Simmonds said, was consistent with a person moving, either by foot or in a car, taking their mobile phone with them. However, there was not enough precision in the data to make that conclusion.

60. [281]

    Mr Simmonds interpreted the second-last map on Ex X to show that the mobile phone was likely in transit home as it showed an elongation of cell towers over a twelve minute period (10:28pm to 10:40pm). He interpreted the last map on Ex X to show that the applicant likely arrived home to his address at 8A Booth Street, Marsfield just prior to 11:00pm.

61. [282]

    In cross-examination, Mr Simmonds agreed that the map on page one of Ex X between 9:38pm and 10:27pm showed the applicant’s phone in the Guildford area. He agreed that the map at the top of page three of Ex X showed the phone in transit through a different area.

62. [283]

    Mr Simmonds agreed that the information suggested that by 10:28pm, the applicant was in his car on his way home. He agreed that between 10:40pm and 11:30pm, the phone was in the applicant’s home area of Eastwood, Marsfield and Macquarie Park.

63. [284]

    Mr Simmonds agreed that at 10:35pm, when surveillance recorded an unknown person walking with Mr Atai, the phone data suggested that the applicant was on his way home. He cautioned that the data was imprecise and they tended to use probabilistic language in their conclusions, such as “unlikely”. [85] Mr Simmonds said it was unlikely that the applicant was in the Guildford area at 10:35pm. He agreed once more that it was likely the applicant was in a car on the move at 10:35pm.

64. [285]

    The applicant tendered in his case Exhibit 22, which is the transcript of a call between Mr Alou and the applicant at 10.29.44pm. The conversation between them includes the following:

65. [286]

    It is convenient to refer to the arguments put to the jury as to whether the applicant met Mr Atai. Mr Simmonds’ evidence included that the phone data suggested that the applicant was on his way home at 10:35pm, which was the time that Federal Agent Smith testified that Mr Atai and the unknown person were walking on Bursill Street, Guildford.

66. [287]

    When referring to Mr Simmonds’ evidence, the Crown reminded the jury that the “pings” give a general indication of the phone; that it couldn’t be said with “any accuracy, positively or negatively, where [the applicant] was specifically at any given time”. [87]

67. [288]

    The Crown said what the jury could work out was that the applicant’s phone was generally in the same area where he was asked by Mr Alou to meet, when Mr Atai was seen to be leaving, at about the same time Mr Alou and Mr Atai were there. The Crown told the jury that they could “work out from all of that that the three of them met at that location at the same time”. [88]

68. [289]

    The Crown referred to Mr Alou’s statement at 9.20.09pm that “I believe im just paranoid akhi this stuff is doing my head in” [89] and put to the jury that the applicant’s Senior Counsel had brushed aside Mr Alou’s statement about his car in the phone call just before 6:00pm on 29 September 2015 with his mother and Kawa Alou (see Ex CF p 129-155). The Crown submitted that Mr Alou’s paranoia was consistent with the fact that he was attempting – but had to that date failed – to obtain a firearm and an ISIS flag in circumstances where Shadi Mohammad’s flight departing Australia was approaching in coming days.

69. [290]

    Senior Counsel for the applicant drew the jury’s attention to the content of the conversation in the exchanges between the applicant and Mr Alou between 9:09pm and 9:40pm and to the call made by Kawa Alou to Mr Alou at [268] above. Senior Counsel for the applicant contended that Mr Alou had been harassed by his brothers and his mother. He referred the jury to the calls between Mr Alou, his mother, his father and his brother between pages 131 to 155 of Ex CF. He put to the jury that Mr Alou was in the midst of a terrible family dispute and the applicant had been acting as a mediator for him. It was submitted that he had been in contact with Jalal Suleman and found out what the problem with his sister was.

70. [291]

    It was the applicant’s case that Mr Alou’s statement that he was “paranoid” and “this stuff is doing my head in” was an expression of his distress arising from his family problems.

71. [292]

    Senior Counsel for the applicant submitted that it was very likely that the applicant and Mr Alou had been together very shortly after 9:41pm during which time they had discussed Mr Alou’s family issues and the meeting had nothing to do with the conspiracy. Senior Counsel referred to the last page of Ex X which indicated that the applicant’s phone was pinging in the Parramatta/Harris Park area and between 10:40pm and 11:30pm he was in his home area of Eastwood/Marsfield.

72. [293]

    Senior Counsel for the applicant referred to the telephone call quoted at [285] above between Mr Alou and the applicant at 10:29pm and submitted that the applicant had obviously left Mr Alou by that time. He submitted that you would not make a phone call to somebody who is in the same building. Senior Counsel put to the jury that it was clear that by 10:35pm the applicant, having rung Jalal Suleman and Mr Alou, was on his way home and was not the man walking with Mr Atai.

73. [294]

    At 1:57pm on 30 September 2015, Mr Alou and Farhad Mohammad arrived at the Parramatta Mosque. Between 1:57pm and 2:27pm, they were in the Mosque area not covered by CCTV cameras. They departed separately shortly thereafter.

74. [295]

    Between 2:22pm and 2:40pm, the applicant posted several images on the Bricks chat WhatsApp forum, including an image which stated “THE BIGGEST ENEMY OF ISLAM ARE NOT THE ISRAELIS, AMERICANS OR THE SHIAS THEY ARE THE MODERATE MUSLIMS”. [90]

75. [296]

    At 2:46pm, Mr Alou sent an SMS to X2 which stated:

76. [297]

    By this message, Mr Alou provided X2 with an alternative phone number.

77. [298]

    At 8:00pm, Mr Alou met with X1 and X2 at a chicken shop in Granville. X2 told Mr Alou that he could not source a firearm for him.

78. [299]

    At 9:22pm, Mr Alou received an SMS from X2 texting the telephone number for Zakaria, an associate of Mr Alameddine. A few minutes later, Mr Alou telephoned the number provided and spoke to Zakaria’s brother, telling him he was desperate and really needed Samim’s number.

79. [300]

    At 12:02pm on 1 October 2015, Farhad Mohammad arrived at the Parramatta Mosque carrying a black Nike backpack. Mr Atai arrived about 20 minutes later.

80. [301]

    At 12:42pm, Mr Alou sent an SMS to Mr Atai stating, “…can u ask ur boss wen im getting my $$$”. [92]

81. [302]

    At 1:00pm, Mr Alou arrived at the Parramatta Mosque carrying a black sports bag and being followed by Ms Perger. He entered the female entry of the Mosque and left the black sports bag in a location not covered by the CCTV cameras. About 15 minutes later, Mr Alou, Mr Atai and Farhad Mohammad stood together in a large group for prayer. At 1:36pm, Mr Alou hugged Farhad Mohammad, then left the Mosque without the black sports bag he had with him when he entered the Mosque. Almost an hour later, Farhad Mohammad collected the black sports bag left by Mr Alou and left the Mosque carrying the bag. He returned to the Mosque at 2:57pm without the sports bag.

82. [303]

    At 2:38pm, Mr Alou contacted Mr Atai. During that conversation Mr Atai said to Mr Alou he was “at the house” and Mr Alou replied that he was coming. Mr Atai then told Mr Alou, “Raban can you bring me something, bro? Actually, I’ll give you the money, cuz”. [93]

83. [304]

    At about 2:51pm, Farhad Mohammad met his sister Shadi at Parramatta. Shortly thereafter, Shadi got into a taxi and was driven to Sydney International Airport. Farhad Mohammad returned to the Parramatta Mosque.

84. [305]

    At 7:44pm, Mr Alou called Ubidallah Azari and confirmed a meeting time of 7:45pm. Mr Alou then drove to Mr Atai’s home in Guildford and picked up Mr Atai. Both men travelled to the Bukhari House Musallah in Auburn.

85. [306]

    Between 7:44pm and 7:47pm, the applicant made three unsuccessful attempts to make telephone contact with Mr Atai.

86. [307]

    At 9:31pm, Mr Alou and Mr Atai attended the vicinity of Mr Alameddine’s home in Lockwood Street, Merrylands. He made five attempts to telephone Mr Alameddine using Ms Perger’s mobile phone between 9:00pm and 10:30pm.

87. [308]

    At 10:38pm, Mr Alou telephoned Mr Alameddine and told him that he had attended his house earlier that evening and had seen his brother. Mr Alameddine confirmed that he was not home and would call Mr Alou the following day. Mr Alou insisted that Mr Alameddine see him that night.

88. [309]

    At 10:57pm, Mr Alou and the applicant exchanged messages on WhatsApp. The sequence of those messages is slightly different in the Crown’s Exhibit AH, which was extracted from the applicant’s mobile phone, and Exhibit 6A, which was tendered in the defence case and was extracted from Mr Alou’s phone. Ex AH includes the following:

89. [310]

    Ex 6A is as follows:

90. [311]

    Between 11:03pm and 11:38pm, Mr Alou and Mohammed Salihy exchanged SMS text messages during which Mr Alou indicated he was stressed. Mr Salihy asked Mr Alou “What happened with the Gucci bag man…did he disappear”. Mr Alou’s text replies included:

91. [312]

    Mr Salihy texted:

92. [313]

    Between 6:51am and 8:04am, Mr Alou unsuccessfully tried to contact X3.

93. [314]

    At 9:21am, Mr Alou and Ms Perger had a conversation in Ms Perger’s car in which the following was said:

94. [315]

    Between 9:38am and 10:17am, two unanswered calls were made between Mr Alou and Mr Alameddine. X3 messaged Mr Alou at 10.15am.

95. [316]

    At 9:58am Farhad Mohammad entered Parramatta Mosque carrying the Nike backpack on his back.

96. [317]

    At 10:17am, Mr Alameddine sent a text message to Mr Alou stating “Salam alakum (peace be unto you) bro what’s happening come around”. [98]

97. [318]

    At 10:18am, Mr Alou sent a message to Mr Alameddine stating “Wa alaykum salam (and unto you be peace) akhi (brother) im in Guildford ill msg wen im outside just wanna come give salams (greetings) to ya”. [99]

98. [319]

    At 10:29am, Mr Alou sent a text message to Mr Alameddine stating “Asalamu alaykum in outside”. Mr Alameddine texted back “Wa alukum salam (and unto you peace) Yallah (I’m waiting/Let’s go) cuz”. [100]

99. [320]

    At 10:31am, Mr Alou parked his car in front of 13 Lockwood Street, Merrylands. He exited his vehicle and walked to the vicinity of 9 Lockwood Street, where he moved out of sight. At 10:41am, he returned to his vehicle and drove home.

100. [321]

     At 10:56am, Ms Perger called Mr Alou and their conversation included:

101. [322]

     At 11:05am, Ms Perger called Mr Alou where Mr Alou said he has “something to do after praying”. [102]

102. [323]

     At 11:31am, Mr Alou entered the Parramatta Mosque and sat with Farhad Mohammad. Mr Alou, his brother Hozan and Farhad Mohammad then spent the next two hours in each other’s company and appeared during this time to be engaged in conversation.

103. [324]

     Between 11:40am and 11:43am, the applicant posted in the Bricks chat WhatsApp forum, “Are use going first or second ?” to which Mr Alou replied “First…”. [103]

104. [325]

     At 11:55am on 2 October 2015, Mr Alou received a telephone call from Ms Perger. Their conversation included:

105. [326]

     At 12:21pm on 2 October 2015, the applicant arrived at the Parramatta Mosque in silver Toyota Corolla hatchback NSW registration YRQ652. The applicant parked his vehicle next to Mr Alou’s white Toyota Camry NSW registration AYR23W at the front of the building and then entered the Mosque.

106. [327]

     The prayer service commenced inside the Parramatta Mosque. Shortly after 1:00pm, Mr Alou and the applicant talked to each other whilst Farhad Mohammad and others were nearby.

107. [328]

     CCTV footage (Exhibit AJ) was played to the jury which included the location and movements of persons and vehicles outside the Mosque between about 1:10pm and 1:20pm. A number of men, including Mr Alou and the applicant, had left the Mosque by 1.10pm when Mr Alameddine called Mr Alou from a public telephone box in Rees Street, Mays Hill. During the interrupted calls, Mr Alou and Mr Alameddine agreed to meet in about 15 minutes. The last call was at 1:19pm.

108. [329]

     Between 1:23pm and 1:26pm, Mr Alou walked towards the applicant and appeared to lean in. They then walked to their vehicles. Mr Alou’s motor vehicle was a white Toyota Camry registration number AYR23W. The applicant’s vehicle was a silver Toyota Corolla registration number YRQ652.

109. [330]

     A partial recording of a conversation between the applicant and Mr Alou whilst they were in the vicinity of their vehicles was also played to the jury. They were heard to say:

110. [331]

     I do not propose to detail all of the movements of the applicant and Mr Alou in the early afternoon of 2 October 2015. Included in Ex AJ was video footage taken from air and ground level of Mr Alou’s vehicle and the applicant’s vehicle as they travelled to different locations and the movements of Mr Alou, Mr Alameddine and the applicant.

111. [332]

     In the footage, the silver Corolla driven by the applicant is seen to leave the Parramatta Mosque first, followed by the white Camry driven by Mr Alou which travels in the same direction as the applicant’s vehicle.

112. [333]

     The route taken by the two vehicles to Jones Park is shown in map (Exhibit Z). At Jones Park at approximately 1:37pm, the applicant parked his car by reversing back into position, whilst Mr Alou drove past the applicant’s vehicle, turned around, drove past the applicant’s car again and parked front first on the other side of the car park.

113. [334]

     The applicant remained in his vehicle whilst Mr Alou got out of his vehicle and met with Mr Alameddine, who had walked to the meeting. After they spoke to each other, the two men walked to Mr Alou’s vehicle and got in. During all of this time, the applicant was seated in his vehicle which was parked on the other side of the carpark facing Mr Alou’s vehicle.

114. [335]

     As they drove away from Jones Park, a conversation between Mr Alou and Mr Alameddine was partially recorded at about 1:39pm by a surveillance device in the vehicle:

115. [336]

     It was clearly open to the jury to conclude that Mr Alameddine had brought the wrong calibre firearm to the meeting and Mr Alou was displeased and did not accept it.

116. [337]

     With Mr Alameddine in his vehicle, Mr Alou drove to Warwick Road, Merrylands, where he parked. The applicant followed in his vehicle and parked in Warwick Road. Mr Alameddine and Mr Alou got out of the vehicle at about 1:42pm and whilst standing on the footpath, had a conversation for some seven minutes. The applicant remained in the driver’s side front seat of his vehicle during this time.

117. [338]

     Warwick Road, Merrylands is parallel to Lockwood Street, Merrylands where Mr Alameddine lived.

118. [339]

     After Mr Alou and Mr Alameddine finished their conversation, Mr Alou walked to the front driver’s side door and Mr Alameddine walked away from that vehicle with some bags in his hands. Mr Alou closed the front driver’s side door and walked to the applicant’s vehicle, where he leant right next to the front driver’s side window. Mr Alameddine, who was walking away, can be seen looking back over his shoulder towards where Mr Alou was standing.

119. [340]

     At about 1:50pm, Mr Alou and the applicant drove to Merrylands Park where they parked in the carpark. Mr Alou parked first. The applicant reversed into a space, then drove out and drove bonnet first into a second space on the other side of Mr Alou’s vehicle. Both vehicles were parked parallel to each other. They remained seated in their vehicles.

120. [341]

     At about 1:53pm, whilst parked next to each other, the applicant and Mr Alou had a conversation which was recorded.

121. [342]

     The audio tape (Exhibit Q) of the conversation was played to the jury. The transcript of the Crown’s version of the conversation is contained in Exhibit P. The Crown also tendered two defence versions of the conversation admitted in the applicant’s first trial. These versions of the conversation became Exhibits AK and AL. However, the applicant tendered in his case Exhibit 12 which his Senior Counsel put to the jury was the correct version. The four versions of the conversation are set out below:

     1. (1)

        Exhibit P:

     2. (2)

        Exhibit AK:

     3. (3)

        Exhibit AL:

     4. (4)

        Exhibit 12:

122. [343]

     Detective Sergeant Forsyth gave evidence that during the first trial it was not suggested on behalf of the applicant that “Kawa” was mentioned at all during the conversation.

123. [344]

     She agreed that the marking up on Ex AK (the underlining and crossing out) was the applicant’s indication through his lawyers at the last trial as to which parts of the Crown’s transcript they disagreed with. She further agreed that Ex AL was tendered by the defence in the first trial to indicate additional parts of the conversation which the jury might hear when the audio was played.

124. [345]

     Further evidence was given by Detective Sergeant Forsyth concerning Exhibit AM, which was a summary of a progressive review of the listening device product, principally of the 1:53pm car to car conversation. She agreed that the exhibit showed, in table form, the progressive transcript prepared by other members of the police force, initially when the unenhanced version was obtained and then changes were made as enhanced versions were received from various sources of investigative holdings.

125. [346]

     Detective Sergeant Forsyth agreed that the first review, which was unenhanced and conducted by a single police officer, being Table 1A, had a number of differences to Ex P which included “Kawa, the masjid, 150”. She agreed that in the enhanced versions there was no reference to “Kawa”. She gave evidence that the further versions were subject to quality reviews and updating. The quality reviews for versions 4 and 5 had been conducted by herself. The quality review which was the same as Ex P, subject to formatting changes, had been completed on 7 January 2019.

126. [347]

     In his closing address, the Crown put to the jury that the 1:53pm conversation indicated that the applicant “was aware of the when, where, how and why in relation to this terrorist event”. [111] The Crown submitted that the correct version was Ex P, in which there was no reference to “Kawa”.

127. [348]

     The Crown placed emphasis on the words “You know I told you when he’s going to thing” being in the past tense. The Crown submitted that Mr Alou was acknowledging that he had already told the applicant the details and the jury could work out from the applicant’s conduct that he knew about the terrorist event and was a party to the agreement.

128. [349]

     It was the Crown case that if it was suggested the applicant was saying in the conversation “I can’t get involved”, the jury could see that from 1:53pm onwards he continued to be involved and assisted Mr Alou for a considerable period of time. He did not get in his car and drive away saying “I want nothing to do with this.”

129. [350]

     The Crown submitted that “can’t get involved but” may be a reference to Mr Alameddine because there had already been a discussion about Mr Alameddine and the heat that he had on him.

130. [351]

     The applicant’s Senior Counsel accepted that the Crown’s version of the conversation was very damaging to the defence but put to the jury that the correct version was Ex 12. Senior Counsel pointed out that the first part of the conversation was about Macca’s and the second part starts with the applicant saying, “I’ve made the decision”.

131. [352]

     Senior Counsel submitted that it didn’t make sense if the applicant had been involved in the conspiracy for him to say, “Listen, Mr Alou, I’ve made a decision, I can’t get involved, bro”. He submitted that when the jury listened to the recorded conversation it sounded like “Ah can’t get involved, bro”.

132. [353]

     Senior Counsel said that “[i]t sounds like the letter “A”, but in fact what [the applicant’s] saying is “I can’t get involved, bro””. [112]

133. [354]

     As to the Crown’s submission that it was a reference to Mr Alameddine, the applicant’s Senior Counsel asked rhetorically why would Mr Alameddine not want to get involved as he was on his way to Merrylands Park to provide the gun.

134. [355]

     It was the defence case that the conversation concerned Mr Alou’s dispute with his brother Kawa. The applicant’s Senior Counsel submitted to the jury this conversation was a continuation of the conversations that Mr Alou and the applicant had in the week prior to the shooting about Mr Alou’s family issues. Senior Counsel argued that the applicant was saying he could not get involved in the dispute between Mr Alou and his family.

135. [356]

     After the car to car conversation, both men left their vehicles at about 1:56pm. They sat on the wall in Merrylands Park until about 2:04pm. They then returned to their motor vehicles and both men stood together at the rear of the applicant’s vehicle.

136. [357]

     About four minutes later, Mr Alameddine entered the car park on a bicycle. He proceeded behind the rear of Mr Alou’s vehicle, turned left and went directly between the applicant’s vehicle and Mr Alou’s vehicle. He placed his bicycle between the front driver’s side of Mr Alou’s vehicle and the front passenger side of the applicant’s vehicle. During this time, the applicant and Mr Alou remained at the back of the applicant’s car.

137. [358]

     Mr Alou then approached Mr Alameddine and had a conversation with him. The applicant remained on the other side of his car but can be seen facing the direction of Mr Alou and Mr Alameddine.

138. [359]

     The listening device transcript at 2:04pm included in Ex P, which describes some indistinct talking and rustling noises and notes Mr Alameddine’s movement of his bicycle, was brought by the Crown to the attention of the jury. The video footage at the time the rustling noises were heard shows Mr Alameddine leaning into the driver’s side window of Mr Alou’s car. Whilst that is occurring, the applicant moved from the other side of his car to the rear of that vehicle, which was closer to Mr Alou and Mr Alameddine. Mr Alameddine then parked his bicycle, which appears to be leaning against the applicant’s car. He and Mr Alou walked away from the two cars into the carpark. The applicant moved around the back of his vehicle and got into the driver’s side, where he remained. When two other vehicles entered the carpark, Mr Alou and Mr Alameddine moved to behind the applicant’s vehicle.

139. [360]

     At about 2:09pm, Mr Alameddine left the carpark on his bicycle.

140. [361]

     It was the Crown case that the handover of the .38 Smith and Wesson revolver from Mr Alameddine to Mr Alou took place at this time when the applicant was present.

141. [362]

     Shortly after, Mr Alou drove towards Lane Street, Wentworthville and the applicant followed. During the journey, Mr Alou spoke to Ms Perger. The conversation included the following:

142. [363]

     At about 2:14pm Mr Alou called Mohammed Salihy, during which he said:

143. [364]

     In reply to Mr Salihy asking “what are you gunna do today?”, Mr Alou replied:

144. [365]

     At about 2:16pm, the two vehicles arrived in Lane Street, Wentworthville and parked in the vicinity of Mr Alou’s family residence. During the journey, the applicant commenced a phone call to a person called Wes which continued after he had parked. The applicant remained in his car. At 2:24pm, Mr Alou stood near the passenger side of the applicant’s vehicle. The applicant got out of his vehicle and walked around the back of his vehicle twice. The two men then stood on the footpath close to one another in front of 67 Lane Street, Wentworthville for some minutes, after which the applicant walked to and got into his vehicle.

145. [366]

     Shortly before the applicant drove away from Lane Street, at about 2:38pm, Mr Alou retrieved a white object from the front passenger side of the applicant’s vehicle. The applicant was not further involved with Mr Alou that afternoon.

146. [367]

     A transcript of the text messages between the applicant and Wes on 2 October 2015 was tendered in the applicant’s case (Exhibit 19). [116] The first text message from the applicant to Wes was at 10:37:12am. The next one was at 1:07:35pm; others followed until 3:30:17pm. The exchanges appear to be of a social nature. The exchanges included:

147. [368]

     The applicant’s Senior Counsel submitted that these exchanges showed the applicant had invited another friend to come to the prayer meeting on 2 October 2015. He argued why would the applicant have done so if his aim for attending Parramatta Mosque that day was to be the surveillance expert for Mr Alou. [118]

148. [369]

     About seven minutes after the applicant had departed, Mr Alou drove his vehicle to the Merrylands Oval carpark. Some ten minutes later, Mr Alameddine arrived on his bicycle. A white plastic bag was being carried on the handlebars. Mr Alameddine rode up to the driver’s side door and leant into the window. The listening device did not capture much of what was said other than Mr Alou saying, “[d]o a good job”. [119]

149. [370]

     Mr Alameddine removed a white plastic bag from the front window of Mr Alou’s car. After a short conversation, both men left the carpark. As Mr Alameddine cycles away, something can be seen swinging from the handlebars of his bicycle.

150. [371]

     It was the Crown case that the unsuitable firearm was returned to Mr Alameddine at this time. The applicant’s case was that the .38 Smith and Wesson revolver was not handed over at the first meeting at Merrylands Park but at this meeting when the applicant was not present.

151. [372]

     It is unnecessary to recount the surveillance material as to Mr Alou’s movements when he returned to the Parramatta Mosque. It is sufficient to state that he arrived at the Mosque shortly after 3:00pm, where he met with Farhad Mohammad. It was the Crown case that Mr Alou left the Mosque at 3:48pm and went to his vehicle, returning with a .38 Smith and Wesson service revolver which had been obtained from Mr Alameddine. Mr Alou and Farhad Mohammad remained alone together in the female prayer hall for about seven minutes. It was the Crown case that during that time, Mr Alou provided the firearm to Farhad Mohammad. Mr Alou left the Mosque shortly after 4:00pm.

152. [373]

     Farhad Mohammad left the Mosque at 4:09pm, having changed into a long black robe, a dishdasha. As he left the Mosque, he made a one finger ISIS salute to the CCTV camera. At 4:24pm, CCTV footage revealed Farhad Mohammad walking along Charles Street, Parramatta where the NSW Police Headquarters were situated. Ten minutes earlier, Mr Alou had driven past the Police Headquarters.

153. [374]

     At about 4:30pm, Farhad Mohammad walked behind Mr Cheng, who had exited the Police Headquarters, and shot him in the back of the head. After murdering Mr Cheng, Farhad Mohammad said “Allahu-akbar [God is great]”. He then fired shots in the air and engaged in gunfire with two Special Constables during which he was shot dead. A note (Exhibit G) was found in Farhad Mohammad’s pocket which indicated that the shooting was a terrorist act committed in the name of ISIS.

154. [375]

     Shortly after he had left the Mosque and before he had driven along Charles Street, Mr Alou made a telephone call at 4:11pm to Ahmad Bakhtiari. The conversation included:

155. [376]

     At 5:09pm, Mr Alou made another call to Mr Bakhtiari about the money. He said to Mr Bakhtiari:

156. [377]

     At 5:24pm, Mr Alou called Mr Bakhtiari again who told him he would be there in five minutes and he was on the way. Mr Alou asked, “Was that fifty bucks or a hundred bucks?” Mr Bakhtiari replied, “It was hundred brother”. [122] Mr Alou told Mr Bakhtiari he would be in the front of the house.

157. [378]

     Another conversation Mr Alou had was with Ms Perger at 9:53pm. Their conversation in Mr Alou’s vehicle included the following:

158. [379]

     On 3 October 2015, Mr Alou had a telephone conversation with Jalal Suleman. They discussed meeting up and also about seeing and comforting Farshad Mohammad. The conversation included Mr Alou saying:

159. [380]

     Between 6:27pm and 6:30pm on 2 October 2015, the applicant posted the following messages on the Bricks chat WhatsApp forum:

160. [381]

     Shortly afterwards, he posted a screenshot from Twitter of news feed from Sydney Morning Herald reporter Rachel Olding about the shooting at Parramatta and then posted, “This what’s going on Twitter”. [126] The applicant then posted “May Allah never take away our prayers” with a link to the image of a young boy praying next to his hospitalised father in Salah. [127] This post was followed by a screenshot from a Twitter feed of an NBC News article “BREAKING: Five U.S. service members among 12 dead after U.S. C-130 transport plane crashes in Afghanistan”. [128]

161. [382]

     It is apposite to note, as the applicant contends, there were a number of posts by him before he posted “May Allah never take away our prayers”. It is the applicant’s case that these posts are consistent with the applicant being surprised by what had occurred.

162. [383]

     Between 7:43pm and 8:14pm, Mr Alou tried to call Mr Atai twice.

163. [384]

     Between 11:39am and 12:30pm, the applicant tried to call Mr Alou on five occasions before Mr Alou rang him at 12:31pm. In the conversation, Mr Alou said, “let’s go eat, bro, I’m really hungry”. [129] They further discussed where they should meet.

164. [385]

     After further text messages and attempted calls, they met at the South Granville McDonalds at 2:15pm.

165. [386]

     At 9:28pm, the applicant posted an image on the Bricks chat WhatsApp forum depicting a man giving an ISIS salute.

166. [387]

     Before I leave 3 October 2015, it is convenient to note that the applicant placed emphasis in his case on a conversation between Ms Perger and Mr Alou at 8:34pm. The exchange between them included:

167. [388]

     The applicant’s Senior Counsel put to the jury that they could hear the words “Mustafa, Mustafa” after Ms Perger said “Dirani”. It was the Crown’s contention if that was said that Mr Alou was referring to Mustafa Elkholy. The applicant’s Senior Counsel submitted that Mr Alou referred both to the applicant and Mr Elkholy as “Musti”. The applicant’s Senior Counsel submitted that the applicant had only found out on the morning of 3 October 2015 that the shooter was Farhad Mohammad which was inconsistent with the Crown’s case that he was a member of the conspiracy.

168. [389]

     At 9:32pm on 4 October 2015, the applicant posted an image to the Bricks chat WhatsApp forum which stated “If you think “snitching” reporting etc whatever you want to call it, is British Islam, you are a Kafir [non-believer]”. [131]

169. [390]

     Minutes later, the applicant posted, “The path of hardship is rewarded greatly, for it is not an easy task to bear. Only those special people will taste the sweetness with in it”. [132]

170. [391]

     That night, the applicant changed the Bricks chat WhatsApp forum name back to Bricks.

171. [392]

     At about 10:00am, the applicant had an encounter with police who had been conducting surveillance of his property in an unmarked vehicle. Detective Senior Constable Dixon gave evidence that at the intersection of Booth Street and Macquarie Road, the applicant stopped his vehicle next to the police vehicle on the left hand side. The applicant proceeded to make gestures and mouthed words indicating that he wanted the officers to roll down the window. When the window was wound down, Officer Dixon heard the applicant ask two or three times, “Why are you taking photos of my house?” Officer Dixon said he may have responded, “I don’t know what you’re talking about”. He said that the interaction was over fairly quickly.

172. [393]

     Between 3:06pm and 3:16pm, there was a discussion between Hozan Alou, Mr Atai and the applicant on the Bricks chat WhatsApp forum about Farhad Mohammad’s body during which the applicant asked to see photos. The exchanges between them included Mr Atai stating, “Allahu akbar the young brother had a smile on his face and his finger up” and the applicant stating, “There’s no burial for the shaheed [Muslim Martyr]”. [133]

173. [394]

     Between 3:16pm and 3:37pm, the applicant posted on the Bricks chat WhatsApp forum that there were two cars outside his house today taking photos. He posted that he “chased them”, they were “[c]owards”, “[t]here was a great amount of fear on there face”, he “pulled the chase” and “like wow dealing with babies here”. [134]

174. [395]

     Between 1:13pm and 1:29pm, there was a discussion between Mr Alou, Mr Atai and the applicant concerning surveillance in his street. The applicant stated:

175. [396]

     Later that afternoon, the applicant recorded a video on his iPhone of himself talking, which he posted to the Bricks chat WhatsApp forum. The applicant stated, “Welcome to the surveillance show…where every angle is covered” while sipping on a slurpee and filming out his bedroom window. [136]

176. [397]

     On 7 October 2015, the applicant was arrested. A search warrant was executed at his residence in Booth Street, Marsfield and his motor vehicle registration number YRQ652. The items seized included $660 cash which was found in the applicant’s bedroom.

177. [398]

     Detective Sergeant Forsyth’s evidence included that on 8 October 2015 a resident of the unit block at 67-73 Lane Street, Wentworthville, Mr Saunders, found some mobile phones packaged together in bubble wrap and jammed under the door of a toilet block in the common area at the back of the unit block. [137] Detective Sergeant Forsyth agreed that police had been able to establish that these phones were previously used by Farhad Mohammad and Shadi Mohammad. [138]

178. [399]

     Detective Sergeant Forsyth gave evidence about “Wickr”. The police officer was referred to Ex BM, which was a document prepared by Detective Senior Constable Eljarrar with respect to installations on the applicant’s mobile phone. She agreed that two of the installed applications found on the applicant’s phone were “Wickr” and “wickrshare”. It was her understanding that police had no success in accessing any communications using Wickr in the case and that any message sent by Wickr, if sent in a certain way, would disappear over time.

179. [400]

     In the chronological review of the evidence, I have referred to some of the documentary material upon which the applicant placed emphasis in the trial. Whilst I do not propose to detail each of the 32 exhibits tendered in his case, I will mention Exhibits 2, 31 and 32.

180. [401]

     Exhibit 2 was Mr Alameddine’s criminal history. Exhibit 31 is a compilation of the communications between Mr Alou and the applicant between 28 July 2015 and 3 October 2015 concerning “eating out” and Exhibit 32 is a compilation of the usage of the term “[m]illions” or “[m]illionaire” by the applicant when communicating with Mr Alou between 28 July 2015 and 28 September 2015 and with Mr Catovic on 4 October 2015.

Further consideration

1. [402]

   In submissions, both at trial and in this Court, individual items of evidence have been separately considered. None of these items of evidence are indispensable intermediate facts that must be proved beyond reasonable doubt. Indeed, the trial judge rejected in R v Dirani (No 20) [2018] NSWSC 1153, at [19]-[20], the applicant’s request for a Shepherd [139] direction that proof of the applicant acting as a lookout or conducting counter-surveillance activities for Mr Alou on 2 October 2015 was an indispensable intermediate fact requiring proof beyond reasonable doubt. No complaint is made about this decision.

2. [403]

   The jury’s obligation was to take all of the evidence together which included the evidence in the applicant’s case.

3. [404]

   As has been mentioned at [221] above, it was the Crown case that prior to the meetings with Mr Alameddine on 2 October 2015, the applicant provided emotional, religious and ideological support to Mr Alou and provided money to assist in the purchase of the gun.

4. [405]

   Having reviewed the whole of the record (excluding the inadmissible parts of the evidence of CIN 1877), [140] I have concluded that when the evidence is viewed in combination, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was a member of the conspiracy to commit a terrorist act before the journey on 2 October 2015 and to reject as reasonable possibilities the explanations of innocence advanced by his Senior Counsel.

5. [406]

   There was ample evidence for the jury to make this finding. Without specifically mentioning all of the WhatsApp forum posts and exchanges between the applicant and others which have been detailed in the review of the evidence, it was open to the jury to find:

6. [407]

   Much has been submitted about the road journey on the afternoon of 2 October 2015. Having viewed the video footage (Ex AJ), which is to be considered in combination with all of the evidence in the trial, I have concluded that it was open to the jury to find that the applicant provided cover and support for Mr Alou when he met with Mr Alameddine to obtain the firearm and to reject as a reasonable possibility that the sole purpose of his journey was to have lunch with Mr Alou.

7. [408]

   In submissions in this Court, the applicant argued that the Crown invited the jury to draw 19 inferences from the evidence, all of which could be explained in a manner which was submitted to be not only inconsistent with the Crown’s case theory but was a reasonable explanation which the jury should have accepted. A further submission was that these inferences were highly speculative.

8. [409]

   I do not propose to detail the 19 inferences to which this argument relates. It is sufficient to reiterate that the evidence is not to be considered in a piecemeal way. When the totality of the evidence was considered, the jury was entitled to reject what were submitted to be the applicant’s reasonable explanations.

9. [410]

   As to the complaint that the inferences were highly speculative, the applicant’s Senior Counsel did not object to any of them at the trial. Furthermore, none of the inferences are the subject of individual grounds of appeal. In any event, I am not persuaded that the inferences the Crown invited the jury to draw were merely speculative.

10. [411]

    Upon my independent review of the evidence, I do not agree with the applicant’s contention that there was a lack of evidence with which the jury could find proved beyond reasonable doubt elements (a), (b), (d) and (f) of the offence. [146]

11. [412]

    The whole of the evidence does not give rise to reasonable explanations other than the applicant’s guilt. I am not satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of the applicant’s guilt on the first count on the indictment.

12. [413]

    Ground 1 of the appeal has not been made out.

The proviso

1. [414]

   I am of the same view as the Chief Justice that a substantial miscarriage of justice has occurred and the proviso should not be applied.

Orders

1. [415]

   Accordingly, I agree with the orders proposed by the Chief Justice.

2. [416]

   N ADAMS J: I have had the considerable advantage of reading the judgments of both Bathurst CJ and Price J in draft.

3. [417]

   I agree with the orders suggested by Bathurst CJ for the reasons provided. I am not satisfied that error has been established in relation to grounds 2, 4 and 5 but I am satisfied that error is disclosed under ground 3. It is to be accepted that CIN 1877’s descriptions of surveillance, anti-surveillance and counter-surveillance techniques were based on his knowledge, skill and experience and were relevant to assist the jury in their consideration of the activities of the applicant on 2 October 2015. On that basis, I agree that no error is disclosed in the admission of the evidence of CIN 1877 summarised above by Bathurst CJ at [29]-[37]. The difficulty is that his evidence went beyond the scope of that admissible evidence to include opinions based on speculation and/or not based on any identified expertise. For my part, I found the evidence of CIN 1877 extracted by Bathurst CJ above at [49] and [53] to be particularly problematic.

4. [418]

   The surveillance evidence was that although the applicant initially parked his vehicle at Merrylands Park in a position that would permit him to see if any cars were following them, he then changed his vehicle’s position to one which would have made it more difficult for him to at as a “cockatoo”. CIN 1877’s “expert” evidence about this was to the effect that although the accused’s first position was “much better” for counter-surveillance, he still thought that the applicant was “being that support person for Mr Alou” in the second parked position. CIN 1877 later said of the second position, “[i]t’s not the most opportune or best position probably to be in to see what’s behind him, but its definitely achievable”. Thus, the police officer was permitted to give “expert” evidence that although the applicant’s actions were not obviously consistent with him acting as a lookout, it was still technically possible that that is what he was doing and it was the opinion of the officer that that was in fact what the applicant was doing. That opinion was not based on any identified expertise and was a matter for the jury.

5. [419]

   As for the exercise of the proviso, I have had regard to the fact that the evidence of CIN 1877 was directed at a critical part of the Crown case. As Bathurst CJ has concluded above at [137], it is simply impossible to assess the extent to which the jury took this evidence into account in reaching its conclusion. On that basis, I am satisfied that a substantial miscarriage of justice has occurred within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) and the proviso should not be applied.

6. [420]

   I also agree with Price J that ground 1 should be dismissed for the reasons provided by his Honour. Having reviewed the whole of the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. Although it is to be accepted that aspects of the Crown case were open to different explanations, the Crown case does not fall to be considered in a piecemeal way, as was accepted by counsel for the applicant. As for Exhibit Q, I too have listened to it and am well satisfied that it was open to the jury to hear the word “Parra” and not “Kawa” in that conversation between the applicant and Mr Alou.