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Abbas v The Queen

Abbas v The Queen

Case [2022] VSCA 39 29 March 2022

Appeal

Criminal Liability

Mens Rea & Intention

Admissibility of Evidence

Criminal Law

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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

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;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abbas v The Queen

Details

AGLC: Hamza Abbas v The Queen [2022] VSCA 39
Case: [2022] VSCA 39
Decision Date: 29 March 2022

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