DEFINING twelve alleged terrorists by what they read and watched verged on McCarthyism, the Supreme Court was told yesterday.
Jurors should be wary of the prosecution’s suggestion that “you are what you read, that you are what you watch”, said defence lawyer Julian McMahon: “It might remind some of you of what used to be called McCarthyism.”
He warned jurors in particular against evidence such as videos of beheadings overseas and other jihadi material that is part of the case.
He accused the prosecution of having used “sleight of hand” in its opening address: “It rolled the idea of what is on a computer, what is on a document, a text, and the reader – you roll them all together and you get a terrorist.”
In a remarkable legal line-up yesterday, 10 defence lawyers stood one after the other and argued the innocence of the Muslim men who are their clients. They all agreed that there was little dispute over what was said or who the speakers were on the 482 covert recordings central to the evidence. But they strongly challenged the prosecution’s take on the meaning of the conversations and the inferences that could be drawn from them.
The jury was also told not to judge the defendants as a “job lot” and to assess carefully the evidence on each of the 27 counts.
Mr McMahon said, “On the Crown presentation over those two weeks, you could be excused for thinking that there are no issues, just a bunch of guilty guys all together, one group, one mind, one body, one living organism, one guilty mass. That is a completely erroneous approach.”
Said lawyer John O’Sullivan: “You have got 27 separate trials to worry about; 27 separate verdicts to consider.”
Lawyers argued that evidence in the case was largely circumstantial, that the accused men’s talk was not action, and that understanding the cultural context of the conversations was crucial.
Greg Barns, for Ezzit Raad, said there was a religious reason for an action by his client that the prosecution had claimed was evidence of being part of an “organisation” rather than a social group.
Raad had borrowed $1000 from the group’s “sandooq”, or fund of money, to pay a legal fine over a conviction for car theft. The prosecution claimed this was because he incurred the fine on behalf of the group, as the car theft was a joint exercise to raise money for jihad.
In fact, said Mr Barns, Raad had planned to go on the Haj (the pilgrimage to Mecca), and pilgrims were not allowed to attend it if they had a debt.
“Which side is right? You make up your mind.”
Lawyer David Brustman told the court that the sandooq existed for cultural and religious reasons only: “It is no more, no less, nothing other than a collection plate.”
Several lawyers argued that the paranoia of the men in covert intercepts – they talked about being followed and feared phones were bugged – had to be viewed against political developments at the time, particularly the passing of terror legislation that many Muslims feared would target them.
Several lawyers mentioned the youth of the defendants, most of whom were in their early 20s at the time of the alleged offences. Said Mark Taft, SC, of Abdullah Merhi: “Listen to the tone of his voice and you can hear a young person trying to understand the world and his place in that world.”
Julian McMahon, for Ahmed Raad, said of his client’s apparent insensitivity while watching a video of American soldiers shot by a sniper, “How much insensitivity is there among your typical Anglo-Saxon young adult male playing M15 and R-rated video games about car crashes – Auto Theft, or whatever it’s called?”
James Montgomery, SC, said the only direct evidence of any explosive was when an undercover agent took Benbrika to Mount Disappointment to “let the penny-bunger off” (showed him how to use fertiliser to create an explosion). Benbrika told no one else in the group of the lesson, Mr Montgomery said – “He is a one-man band.”
Mr Brustman said his client, Shoue Hammoud, had warned Benbrika at one stage: “Sheikh, we’ve done nothing, but just from the talk (inaudible) that’s what’s going to get us in trouble, I swear to Allah it is.”
Asked Mr Brustman, “How’s that for a prophetic statement?”
The trial continues.
GERARD MULLALY FOR MAJED RAAD:
There is still no law against what you think ¿ You have to cross the line of criminality, not the line of morality or decency … Majed Raad didn’t cross the line.”
JOHN O’SULLIVAN FOR SHANE KENT:
“When other people talk about him ¿ it’s gossip, what the law calls hearsay … It is not proof that Mr Kent has said or done anything.”
JAMES MONTGOMERY, SC, FOR HANY TAHA:
“He never has any weapon, never talks about a weapon, he’s never had a bomb, never talks about a bomb. Never part of any planning group that’s planning to blow up anything.”
MARK TAFT, SC, FOR ABDULLAH MERHI:
“The intercepted conversations ¿ show that Abdullah Merhi was fumbling for meaning and identity, not that he was committing to terrorism.”
BENJAMIN LINDNER FOR BASSAM RAAD:
“There are 19 pages of (jihadi) materials in this jury book. Not one of those pages was found in possession of Bassam Raad. Not one of those pages was found on a computer in the possession of Bassam Raad.”
JULIAN McMAHON FOR AHMED RAAD:
He did not belong to a terrorist organisation, did not intend to belong to a terrorist organisation.
Ahmed is not part of some fictitious, contrived, Crown-created ‘consultative committee’.”
DAVID BRUSTMAN FOR SHOUE HAMMOUD:
“No pledge or ‘bayat’ to any terrorist group or any leader of any terrorist group at all is admitted by Mr Hammoud. He completely denies the fact and indeed the entire concept of it.”
GREG BARNS FOR EZZIT RAAD:
In the conversation that led to the charge that he tried to make funds available to the organisation, he was “a reluctant participant and a doubting Thomas”.
TREVOR WRAIGHT FOR AIMEN JOUD:
“You will not hear anyone (on the covert recordings) use the phrase ‘violent jihad’ ¿ This group was not a terrorist organisation.”
ANTONY TROOD FOR AMER HADDARA:
“It would be a bizarre thing that a person could be guilty of an offence of being a member if they didn’t know what it was, your common sense would tell you that.”
NOLA KARAPANAGIOTIDIS FOR FADL SAYADI:
“This case is principally about words and beliefs or thoughts – not actions ¿ You might come to the view that he held some beliefs that you don’t necessarily agree with or you don’t like, but please don’t let that distract you.”

First published in The Age.