The prosecution says they were planning violent jihad, but the 12 men at the centre of Melbourne’s terrorism trial maintain that angry words do not equate to violent deeds.
THE YOUNG man rings his wife to ask her to pack a bag for him.
He wants trackies, singlets, jocks and socks. She wants to know why he needs all those clothes for just two days in the mountains.
They talk: Her: “What are you going to do there exactly?” Him: “Uh, go do a bit of, you know, terrorist training.”
Her voice rises: “What are you going to do there?” “Terrorist training.”
“Don’t be stupid. What are you going to do there?” “Nah, we gonna go camping.”
“Camping for what, but?” “Camping. The brothers all together, you know. Kick back, read a bit of Koran.”
The husband is Shoue Hammoud, a lean, dark man with deep-set eyes. He wears his black beard long enough to be grasped in a fist, the way Islamic scholars say a traditional Muslim man should.
He is now 28 and spends most of his weekdays sitting in a dock with 11 other Melbourne Muslims accused of terrorism in the pursuit of violent jihad. All have pleaded not guilty.
Hammoud’s phone had been tapped, and that exchange with his wife in October 2004 is part of the evidence against him.
For senior prosecutor Richard Maidment, SC, Hammoud’s line about a terrorist training camp is an example of how “many a true word is spoken in jest”.
But Hammoud’s defence lawyer, David Brustman, called on history and world politics to make a different point about “a joke which they say ought (among other things) convict a man of such serious offences”. He told the jury of the novels of the great Russian writer Alexander Solzhenitsyn and how he was arrested by the state in 1945 and condemned to a decade in Siberian labour camps. “Do you know what the actual crime (was) that Alexander Solzhenitsyn committed? He told a joke about Stalin. That’s it.”
The Supreme Court trial of self-styled religious leader Abdul Nacer Benbrika and 11 others on charges of being a home-grown terrorist organisation has at times sounded like an episode of Boston Legal. Defence lawyers have invoked grand principles of justice, freedom of speech and the nature of our society to argue that this is a case in which men are being tried largely over their reading, their viewing and their words, rather than their deeds.
This is a trial in which cultural difference – what Senior Counsel Mark Taft described as two worlds that are often “mutually incomprehensible” – is centre stage. A Western secular legal system is engaging intensely with Islamic religious law; almost two days of cross-examination was spent defining Muslim beliefs. There are not many court cases in which one silk says to a witness, “Can I ask you about sin?”, and another gives the jury a detailed geo-political lecture on the non-Western world view of “people who live in a Muslim ghetto in Melbourne”.
Prosecution evidence includes jihadi rhetoric and other exchanges in 482 covertly recorded conversations between the men; alleged jihadi libraries; the men’s joint financial activities; their camps away together; and Benbrika’s interest in explosives, as expressed to an undercover agent who infiltrated the group.
In defence of the accused, it has been argued that the jihadi rhetoric was just the blustering bravado of men trying to impress each other; their joint fund was the equivalent of a church collection plate; their camps were recreational; and the jihadi documents and videos found in their possession are of a kind commonly accessed by law-abiding Muslims interested in world affairs. As for Benbrika – QC James Montgomery told the jury, “You may well have formed the view that Mr Benbrika couldn’t lead ants to sugar”.
This is what the Crown alleges: The men belonged to a group that operated in the suburbs of Melbourne between July 2004 and November 2005. The leader was Algerian migrant Benbrika.
Maidment says they secretly intended to foster or prepare a terrorist act in Australia or elsewhere – a bombing attack where maximum damage and loss of life could be inflicted, such as at a football ground or a railway station. The purpose was violent jihad in the cause of Allah, Maidment says.
In one conversation, Benbrika told a Sydney associate, named in court as Khaled I, “If we want to die for jihad we do maximum damage, maximum damage. Damage their buildings with everything, and damage their lives, just to show them. That’s what we waiting for. You be careful … Trust no one.”
An alleged motive was to try to force the Australian Government to bring troops back from Iraq. In a conversation with the youngest accused, Abdullah Merhi, Benbrika said, “When we are in Australia, when we do something, they stop to send the troops. If you kill here a thousand, the Government is going to think, because if you get large numbers here, the Government will listen.” He then warned, “It has to be secretly. Watch yourself. Because if you show them what we want they are going to put us in jail.”
In most of the conversations, however, there is no direct mention of violence. Says Maidment: “They don’t use ‘terrorist act’, of course, they talk about ‘doing something’ in Australia.” This means the jury will have to judge whether a proposed act of terrorism in Australia is really what was being spoken about – and that need for the jury to “join the dots”, says defence lawyer Trevor Wraight, means this case is largely circumstantial.
The Crown claims the group was an organisation with a structure and roles: Aimen Joud, Fadl Sayadi and Ahmed Raad were allegedly members of a consultative council and Ahmed Raad was also treasurer of the “sandooq”, a group fund to which they were all expected to contribute from their wages. Money was also allegedly raised for the group by Bassam Raad through credit card fraud, and by others, including Hany Taha and Ezzit Raad, through stealing cars and stripping and selling parts.
Merhi had offered himself as someone who would participate in an act of terrorism, the Crown claims, and Shane Kent was valuable because he had had paramilitary training overseas. Benbrika is alleged to have accepted a formal “bayat”, or pledge of allegiance, from most of the men.
Benbrika held “dars” or religious classes in which he expounded his view of Islam, and in everyday conversations the men often asked him to explain the authentic Islamic position on a moral issue. Benbrika’s take on theology justified the killing of innocent men, women and children on the grounds that the kuffr (unbelievers) were killing innocent Muslims, Maidment says.
There is evidence that rumours were percolating through the Muslim community during the time the group was being investigated, and at least four Muslim men tried to intervene to warn against potential trouble.
About three years ago, Samir Mohtadi (also known as Abu Hamza), director of the Islamic Information and Services Network of Australasia, sought a meeting with Benbrika because he had heard Benbrika was “teaching the boys to do something … violent in this country”.
Mohtadi told the court that Benbrika greeted him with, “Are you a spy, Abu Hamza?” Mohtadi said he replied, “If you intend to do anything silly, I will become a spy, and as far as I am concerned it is an act of worship.”
He said Benbrika repeatedly denied that he was considering violence. But they had a debate about Islamic jurisprudence in which Benbrika argued that Australia was ” ‘a land of war’ … a country that has declared war against Muslims in another country”.
The second intervention came in September 2004; accused Hany Taha told Benbrika that his father had warned him Benbrika was under surveillance and that he should not go to him for lessons any more.
Then, in December that year, a worried Mohammed Hammoud called his son, Shoue, saying someone had told him “you are going to make a bomb, and you are going to blow Australia up, and the police are watching you”. Shoue Hammoud repeatedly denied the bomb claims: “No, no, no, don’t worry .
… I swear to Allah that there’s nothing at all.”
Shoue’s uncle, Ahmed Abboud, also phoned, warning his nephew about Benbrika.
The group was infiltrated by an intelligence agent named in court as SIO39. He posed as a Turk named Ahmed and told Benbrika he knew how to use explosives and could obtain the ammonium nitrate (a form of fertiliser) to make them.
Benbrika was recorded asking how much would be needed to destroy a house, and was told 50 to 75 kilograms. He asked SIO39 if he could obtain up to 500 kilograms. Later, they travelled to Mount Disappointment where the agent gave him a small demonstration.
The prosecution says the group drew inspiration from overseas terror organisations such as al-Qaeda, and some defendants were recorded making approving references to the bombings in Spain and London (52 died in the latter, a toll that Ezzit Raad described as “terrible. Should have been more”).
The police seized documents and CDs from homes of the accused that together constitute what the Crown calls a jihadi library. A compact disc found at Joud’s contained a Car Bomb Recognition Guide and The Terrorist’s Handbook, which contained information on buying explosives and propellants and preparation of chemicals.
Video clips of beheadings were found in the possession of Benbrika, Kent, Joud and Merhi, Maidment says: “Typically, they show the victim dressed in orange overalls, evocative of Guantanamo Bay, and the victim is kneeling in front of a small group of armed and hooded men who … sever the head of the victim with a large knife, and the severed head is then held aloft in triumph.”
A seized document called The Nineteen Lions glorifies the aircraft hijackers responsible for the September 11 attacks, hails them as martyrs and suggests they will go down in history for one of the greatest victories ever won in the name of Islam, the Crown alleges.
Defence lawyers have tried to show that many Muslims in Melbourne have such material and hold such views. Lawyers have also argued that we live in a society that values the right of people to say what they think, even when it might be unpopular.
Under cross-examination, Samir Mohtadi agreed it was part of his duty as a Muslim to inform himself about the plight of fellow Muslims and that he regards the Government of Israel as a terrorist organisation. Young Muslims do access radical views of Islam on the internet, and some have come to him with a burning sense of injustice on which they would like to act, he agreed.
Remy Van de Wiel, QC for Benbrika, asked if it was “common for people you would have seen as mainstream, moderate, law-abiding young Muslims – it is common for them to be accessing this kind of information?” “Yes.”
“Common for them to be discussing exhortations about the religious obligation to wage jihad against enemies of Islam?” “Yes.”
“Common for them to be viewing violent killings in videos?” “Yes.”
Julian McMahon, for Ahmed Raad, said the prosecution’s line of argument was suggesting that “you are what you read, that you are what you watch”, and that this might remind some of the political witch-hunts of McCarthyism.
Gerard Mullaly, for Majed Raad, told the jury, “In this trial you will hear conversations or you will read in the written material beliefs, views and opinions which are undoubtedly fundamentalist and extreme …”
No doubt to you and many, many in our community, it is self-evidently the right and decent thing to condemn terrorist outrages in the United States, in London, in Bali, in Spain, in Iraq – wherever; to condemn bin Laden, al-Qaeda; but it’s not a crime if you don’t. It’s not a crime if you think differently … It’s not a crime to be angry about what you think are injustices wherever they are in the world.”
To move all the way from that to serious criminal conduct, to become a terrorist yourself, you have to do something, to actually know – not just hope or think or support or passionately believe in a cause, but to know – that a group is actually preparing and fostering a terrorist act, and then you have to do what is needed to show you intend to be part of it. That’s the key question in this trial.”
The trial continues before Justice Bernard Bongiorno.
Before the court
All 12 accused are charged with having intentionally been members of a terrorist organisation that was involved in the fostering or preparation of a terrorist act.
The act would allegedly have involved the detonation of an explosive or the use of weapons in the pursuit of violent jihad, with the intention of coercing or intimidating the Government or the public. Some face other charges.
All have pleaded not guilty on all counts.
ABDUL NACER BENBRIKA
Born in 1960, he grew up in Algeria with seven older brothers and one younger brother. He came to Melbourne in 1989 to escape war and because he believed he would have greater freedom to practise his religion here. Now 47, he married in 1992 and has seven children, with whom he lived in Dallas. He found it hard to get work here even though, he says, he passed a test to have his Algerian qualifications as an aircraft engineer recognised.
In Melbourne he worked as a religious teacher (almost entirely self-taught, says the Crown) and as a teacher of Arabic. He was also known as Abu Bakr (“father of Bakr” – it is common for Arab men, once they have fathered a son, to be known as “father of …”
that son). The Crown says he used his assumed authority as a sheikh (religious teacher) to direct and lead the alleged organisation. Several years ago he broke away from the Preston mosque because of differences over his views.
OTHER CHARGES: Directing the activities of an alleged terrorist organisation and knowingly possessing a compact disc connected with the preparation of a terrorist act.
AMER HADDARA
Aged 28, of Yarraville, did not become associated with the group until September 2005, late in the investigation. He was covertly recorded giving an alleged “bayat”, or pledge of allegiance, to Benbrika.
OTHER CHARGE: Being in possession of a computer that he knew was connected with the preparation of a terrorist act.
SHOUE HAMMOUD
Aged 28, of Hadfield.
OTHER CHARGE: Having made available an unknown sum of money on December 6, 2004.
AIMEN JOUD
Aged 23, of Hoppers Crossing. He had an alleged role in the “consultative committee”.
OTHER CHARGES: Acting as an administrator, attempting to make funds available to the alleged terror organisation and possessing two CDs connected with the preparation of a terrorist act.
SHANE GREGORY KENT
Also known as Yassin, Abu Ibrahim or Abu Ibs. He worked as a forklift driver and then as a concreter, was a practising Muslim and lived with his wife in Meadow Heights. In 2001 he attended an overseas training camp that was paramilitary but “not clandestine”. The Crown says he was valued for his knowledge of topography.
ABDULLAH MERHI
Aged 22, of Fawkner, married. Youngest of the accused, he was a teenager for most of the relevant period. The Crown says he had identified himself as a person being willing to participate in carrying out a terrorist act.
OTHER CHARGE: Having intentionally provided resources to the alleged terrorist organisation “by undertaking to engage in a terrorist act involving the detonation of an explosive or incendiary device” in the pursuit of violent jihad.
AHMED RAAD
The brother of Ezzit and Majed Raad, he lived in Fawkner with his wife and child. He is now 25. He was allegedly treasurer of the sandooq.
OTHER CHARGES: Having intentionally attempted to make funds available to the alleged terrorist organisation and intentionally providing resources to the alleged organisation by acting as its treasurer.
BASSAM RAAD
Cousin to Ahmed, Ezzit and Majed Raad. Aged 26, he lived in Brunswick.
Crown alleges he “applied skills in credit card fraud” to raise money for the group.
OTHER CHARGE: Having made $1000 available to the organisation on November 5, 2004.
EZZIT RAAD
Aged 26, of Preston.
Brother of Ahmed and Majed, married, two children, an electrician. A stolen Honda Prelude was found in his garage.
OTHER CHARGE: Having intentionally attempted to make funds available to the alleged terrorist organisation.
MAJED RAAD
Aged 23, of Coburg. The youngest of the three Raad brothers, he married in 2004 and was doing an apprenticeship as an electrician.
FADL SAYADI
Allegedly a member of what the Crown termed “the consultative committee”, helping keep the group together and watching out for its security. He warned Benbrika that he should be careful of “Ahmed” (the undercover agent, SIO39).
OTHER CHARGE: Having intentionally provided resources to the alleged terrorist organisation by acting as a leader and administrator.
HANY TAHA
Aged 33, of Hadfield.
Allegedly tried to raise money by stealing cars, cutting them up and selling them for parts.
OTHER CHARGE: Having intentionally attempted to make funds available to the alleged terror organisation.

First published in The Age.

THE daily regime that a psychiatrist warned could trigger major depression begins with a wake-up call in the state’s highest-security jail wing, Acacia Unit at Barwon Prison, about 5.45am.
Breakfast is offered to the men at 6am but is not accepted by all of them, according to defence lawyers, because some fear motion sickness in the vans that transport them to and from Barwon, near Lara, to the court in Melbourne. The men are strip searched when they enter and leave the prison, which means twice each court day.
Forensic psychiatrist Douglas Bell told the court they had all their clothes removed “and they are asked to squat and part the cheeks of the buttocks” to ensure there is nothing concealed there.
The strip searches do not include cavity searches, Dr Bell said, but he warned that the consequences of such a routine for the duration of a trial that might run for nine months would be “a cumulative burden of embarrassment, a feeling of shame and humiliation that . . . will just contribute to the overall level of distress and trauma”. Questioned by the judge, prison manager David Prideaux said no contraband or weapons of any kind had ever been found in any strip search of the prisoners.
The men are shackled to travel the 80 or so minutes between Barwon and the County Court building in Melbourne. Their hands are shackled to a belt around their waist, and their feet are shackled to each other.
The court was told the men travelled for two hours each way: either on foot, waiting in the van for others to be loaded, on the road or getting out of the van. The first group of prisoners leaves the unit and goes to the prison gate at 6.50am. The van leaves at 7.45 and arrives at court at 8.55am.
The vans are air-conditioned but armour-plated, so occupants cannot see out, and are mostly subdivided into small, boxlike steel compartments that hold one or two people.
Occupational physician Dr Amanda Silcock inspected them and said: “I found it extremely claustrophobic and I don’t normally suffer from claustrophobia . . . I think if I was shut in there, I’d probably have a panic attack.” The men get back to Barwon about 6.30pm on court days. They have dinner and can use a day room and exercise yards until 9pm. They get two hours out of lock-down when court is sitting, and six hours out of lockdown other days. Last year they spent up to 23 hours a day locked in their cells.
Dr Bell told the court that despite this and other improvements, their regime was still “very austere” and one in which “the ordinary person, I think, can reasonably be expected to experience a very significant degree of psychological and emotional distress”.
Another forensic psychiatrist, Dr Adam Deacon, said: “Some of the men have described periods of disorientation, which is not uncommonly seen in people who are incarcerated and kept in isolation for long periods of time.”
Dr Bell warned that the stresses could damage the defendants’ ability to concentrate and to remember matters related to their case.
Justice Bongiorno said the accused must be able to pay attention to detail and follow the complex legal proceedings “if they are to look after their own interests properly”.

First published in The Age.

A MUSLIM community leader told the Supreme Court yesterday that he warned alleged terrorist leader Abdul Nacer Benbrika against violence after hearing a group “intended to blow up a place or something”.
“I said if he intends to kill anyone in this country, he will imprison our Muslim sisters, and he would be killing innocent people, and it would be devastating for the Muslim community and for the non-Muslim community,” Samir Mohtadi said.
He said Benbrika’s response was: “What you have been told is nothing but a lie.”
Mr Mohtadi said he had heard the rumours at the Preston mosque three years ago and sought first to check the truth with Benbrika, whom he had known for years but from whom he had distanced himself due to Benbrika’s “harshness”.
Mr Mohtadi said he met Benbrika in a park near Benbrika’s home. He said Benbrika’s first remark to him was: “Have you become a spy?”
Mr Mohtadi said he replied: “If you intend to do anything silly, I will become a spy, and as far as I’m concerned it’s an act of worship.”
He said he told Benbrika that he should be telling his followers to be law-abiding citizens and that they discussed religious freedom in Australia.
“You won’t have a better opportunity anywhere in the world, even Saudi Arabia,” he recalled telling Benbrika.
Mr Mohtadi said Benbrika insisted to him that Australia was “a land of war”, which Mr Mohtadi defined as “a place or a country that has declared war against Muslims in another country”.
Mr Mohtadi is the director of the Islamic Information and Services Network of Australasia in Coburg.
He said he founded the network when he broke away from another Muslim body that he felt was dominated by men preoccupied with overseas issues rather than the issues facing young Muslims in Australia.
He was giving evidence at the trial of 12 Melbourne Muslims, including Benbrika, who are charged with being part of a terrorist organisation that was pursuing violent jihad. All the men have pleaded not guilty.
Under cross-examination by defence counsel, Mr Mohtadi agreed that other members of the Muslim community in Melbourne downloaded some of the alleged jihadi material found with some accused, including videos of beheadings: “I have seen them myself,” he said.
He agreed that he believed the Government of Israel to be a terrorist organisation, and that many Muslims regarded Osama bin Laden as a good man because he had sacrificed his wealth to fight for Muslims.
He told the court that, at the time of ASIO raids on the accused in 2005, local Muslims feared they were being singled out by police and that Melbourne mosques handed out pamphlets detailing the powers of police and ASIO.
The trial continues.

First published in The Age.

HE IS known to the court only as SIO 39, an intelligence operative trying to infiltrate an alleged group of Muslim terrorists. He was talking to Abdul Nacer Benbrika, a self-styled cleric and the alleged leader of the group, about how best to buy ingredients for explosives.
In recordings played to the Supreme Court yesterday, he told Benbrika that Tasmania was the place to go. In Melbourne, he joked, “Everywhere you go (with a beard), they say, ‘Ah, there’s a terrorist!’ ”
But Tasmania, where he had once worked blowing up tree stumps, was a place where a bearded Muslim man would not raise suspicion.
“A lot of the loggers that cut the trees – you know, the workers – they have beards. They don’t shave the moustache. They grow . . . bigger than you . . . long red beards. So they don’t care,” he said.
“Thanks be to Allah,” replied Benbrika in Arabic.
The agent said if he went to buy materials “for this job” in Hobart, he would have to go by boat “cos I can’t bring ’em on the plane, you know”. He explained the ferry Spirit of Tasmania could take him and a car there and back.
Benbrika asked him, “If you bring, can you show me how to do it?”
“Yeah, of course, sheikh, Allah willing.”
The agent warned Benbrika he would need someone to show him what to do so that he did not hurt himself: “You put a detonator on the end of the fuse and you have to . . . squeeze the detonator so the fuse doesn’t come off.
“Now if you squeeze the wrong part, that detonator, it’s only got a little bit of explosive in it, that detonator will explode, and your . . . whole hand will blow off.”
Benbrika asked whether the agent could still get the materials “now, after 11 September?”
The agent replied, “In Hobart – there’s water in between, you know. It’s like a different world down there, you know. There, they’ve never seen Muslims . . . It’s all farmers. And you can get it.”
The agent said he believed his sources stole the ingredients from the Army Reserve and said, “That’s the disbelievers’ army. Who cares if we steal it?”
The conversations, covertly recorded by investigators, took place at Benbrika’s home in September 2004.
Benbrika and 11 other men have pleaded not guilty to charges of belonging to a terrorist organisation pursuing violent jihad.
The trial continues.

First published in The Age.

DPP slammed over appeal test cases
Karen Kissane, Law and Justice Editor   BARRISTERS have launched an attack on the director of public prosecutions, Jeremy Rapke, QC, over recent comments in which he criticised judges for giving inadequate sentences.
They accuse him of using the media to speak out in a way that undermines the independence of judges.
“Such comments, reported in selected print media, have the undesirable effect of compromising judicial independence by placing public pressure on judges to impose harsher penalties,” the Criminal Bar Association said in a statement.
“These types of public comments made in the popular media by the senior prosecutor of this state, in our view, carry an appreciable risk of eroding public confidence in the administration of justice . . .
“We believe that it is not (his) role to either announce or mount campaigns in the public media.”
In a statement soon to be released on its website, the association criticised Mr Rapke’s plan to run “test cases” in appeal courts in an effort to address perceived low sentencing by Victorian judges.
“The most recent announcement by Mr Rapke, in combination with a previous announcement, which criticised members of the judiciary over the making of insensitive remarks, together constitute an unwelcome trend to publicly attack Victorian judges in the media,” the association’s statement says.
Mr Rapke was unavailable for comment yesterday.
Mr Rapke last week told the Herald Sun that he would challenge the Court of Appeal to set tougher sentences for drug traffickers, murderers and frauds. He said he planned a series of “test case” appeals where he believed sentences had not met community expectations.
This followed comments he made in January to media outlets accusing some judges of being insensitive to sexual assault victims. Mr Rapke called for more judicial education for judges so that victims of crime were treated with “dignity, sensitivity and compassion”.
Criminal Bar Association chairman John Champion, SC, yesterday told The Age, “This is not a practice that we have seen too much of in the past in Victoria.”
Mr Champion said there were appropriate forums in the justice system where sentencing issues could be debated without getting “over-emotional”.
He defended judges’ sentencing practices. “I hear the comment all the time that judges are out of touch. I think it is a myth. Judges are very well educated and deal with hundreds of these cases day after day. Judges hear both sides of the story, they are independent and they are not out of touch with community standards. No one wants to get it right more than they do.”
A spokeswoman for the Supreme Court said it would be inappropriate for Chief Justice Marilyn Warren to comment.

First published in The Age.