Abbas v The Queen

Case [2022] VSCA 39


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0192

HAMZA ABBAS Applicant
v
THE QUEEN Respondent

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JUDGES: T FORREST, EMERTON and KENNEDY JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 7 February 2022
DATE OF JUDGMENT: 29 March 2022
MEDIUM NEUTRAL CITATION [2022] VSCA 39
JUDGMENT APPEALED FROM: [2019] VSC 775 (Beale J)

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CRIMINAL LAW – Appeal – Conviction – Conspiracy to do acts in preparation for, or planning, a terrorist act – Preparatory offences – Whether verdict of guilty unsafe or unsatisfactory having regard to evidence – Whether judge erred in directions to jury on fault element – Whether doing act in preparation for or planning a terrorist act requires intention that terrorist act occur – Whether judge erred in admitting co-offender’s plea of guilty – Whether probative value of co-offender’s plea outweighed by danger of unfair prejudice – Whether judge erred in allowing use of co-offender’s plea for hearsay purpose – Power v The Queen (2014) 43 VR 261 applied, Lodhi v The Queen (2006) 199 FLR 303, Fattal v The Queen [2013] VSCA 276, Dacre v The Queen (2018) 57 VR 285 considered; Criminal Code Act 1995 (Cth) sch ss 11.5, 101.6, Criminal Procedure Act 2009 s 276(1), Evidence Act 2008 ss 38, 60, 81, 137 – Appeal dismissed.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr C Carr SC
with Ms A J Beech
Stary Norton Halphen
For the Respondent Mr P J Doyle SC
with Mr A Sprague
Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
EMERTON JA
KENNEDY JA:

Introduction

  1. After a lengthy trial in the Supreme Court the applicant was convicted of ‘[c]onspiring with Abdullah Chaarani, Ahmed Mohamed and Ibrahim Abbas to do an act or acts in preparation for, or planning, a terrorist act’, contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth) (the ‘Criminal Code’).[1]  Those provisions read, relevantly, as follows:

    [1]Schedule to the Criminal Code Act 1995 (Cth).

11.5     Conspiracy

(1)A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, commits the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.

…

(2)For the person to be guilty:

(a)the person must have entered into an agreement with one or more other persons;  and

(b)the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement;  and

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

…

101.6   Other acts done in preparation for, or planning, terrorist acts

(1)A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

…

(2)A person commits an offence under subsection (1) even if:

(a)a terrorist act does not occur;…

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AGLC
Hamza Abbas v The Queen [2022] VSCA 39
Case
[2022] VSCA 39
Decision Date

CaseChat Overview and Summary

The case of Abbas v The Queen involved the appellant, who was convicted of conspiracy to engage in acts in preparation for, or planning, a terrorist act. The appeal was brought before the court, challenging the safety and satisfaction of the verdict, the judge's directions to the jury concerning the fault element, and the admissibility of a co-offender's plea of guilty. The appellant argued that the verdict was unsafe and unsatisfactory, the judge erred in their direction to the jury regarding the fault element, and that the judge incorrectly admitted the co-offender's plea of guilty. The central issues before the court were whether the act of preparing or planning a terrorist act required the intention that the terrorist act would occur, and whether the judge erred in admitting the co-offender's plea of guilty.

The court considered whether the verdict of guilty was unsafe or unsatisfactory having regard to the evidence. It was determined that the jury had properly considered the evidence and found the appellant guilty beyond a reasonable doubt. The court also examined whether the judge erred in their directions to the jury on the fault element. It was held that the judge correctly directed the jury on the fault element, which required the appellant to have the intention that the terrorist act would occur. The court further considered whether the judge erred in admitting the co-offender's plea of guilty. It was determined that the probative value of the co-offender's plea outweighed the danger of unfair prejudice, and that the judge did not err in allowing the use of the co-offender's plea for a hearsay purpose. The court applied the principles from Power v The Queen and other relevant cases in reaching its decision.

Ultimately, the appeal was dismissed. The court found that the verdict of guilty was safe and satisfactory, the judge correctly directed the jury on the fault element, and the judge did not err in admitting the co-offender's plea of guilty. The appellant's conviction was upheld, and the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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