Alameddine v The Queen

[2021] HCATrans 198

[2021] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S79 of 2021

B e t w e e n -

TALAL ALAMEDDINE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON FRIDAY, 12 NOVEMBER 2021, AT 2.00 PM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR G.O’L. REYNOLDS, SC appears with MR T. BICANIC and MR D.A. WARD for the applicant.  (instructed by Karnib Saddik Law Firm)

MR P.R. McGUIRE, SC appears with MR M.S. KAYLK for the respondent.  (instructed by Director of Public Prosecutions (Cth))

KIEFEL CJ:   Yes, Mr Reynolds.

MR REYNOLDS:   Your Honours, my client needs a time extension.  I understand that is not opposed.

KIEFEL CJ:   It is a substantial extension required, Mr Reynolds.  We might hear argument first, including your argument as to explaining the extension.  It is in part, as the respondent points out, explained by delays caused by the pandemic.  But I do not think that is all of it, is it?

MR REYNOLDS:   Your Honour, I had assumed because there was no opposition that there would be no issue about this matter.

KIEFEL CJ:   Perhaps if you proceed to substantive argument, we will leave it as a matter of prospects. 

MR REYNOLDS: Your Honours, in my submission, the application raises two closely related questions which warrant a grant of special leave. The first issue is the construction of section 101.4 of the Criminal Code (Cth) which, we submit, is an important provision in the fight against terrorism and gives rise to difficulties of interpretation which should be the subject of an…..Court. The second issue is that the judges below, in sentencing the applicant, I submit, breached the principle in De Simoni. 

Now, my client was, as your Honours know, charged with a recklessness offence under section 101.4(2), and that offence is set out at page 174 of the application book at about line 35. Your Honours see about line 39 that it is “recklessness” that is the mens rea. He was not charged with an offence under subsection (1), which, as your Honours see from line 30 on page 174 has as its mens rea requirement knowledge. My client says that the judges below breached the De Simoni principle by taking into account circumstances which would have warranted a conviction for a more serious offence in subsection (1). 

Now, to determine whether those factual circumstances would have warranted a conviction for the more serious offence in subsection (1), it is necessary obviously to do two things.  The first is to construe subsection (1), and the second is to look at the factual circumstances that have been taken into account.

So far as subsection (1) and its construction is concerned, if your Honours go back to page 174, your Honours will see in subsection (1), paragraphs (a) and (c) are not difficult to construe.  But if your Honours turn to paragraph (b), which is the same in both subsections (1) and (2), that presents real difficulties of construction. 

Those difficulties were adverted to by the Victorian Court of Appeal in Benbrika v The Queen, and if I can take your Honours briefly to that case.  At paragraph 315 your Honours will see that the judges there expatiate on their interpretation of the words:

‘connected with preparation for a terrorist act’ –

and they say that three cumulative requirements are necessary, so your Honours will see about half a dozen words are expanded out by the Victorian Court of Appeal to about eight lines of requirements.

Now, I will not read out all of those elements there, but can I point out just a few small things about the construction their Honours give to paragraph (b).  The first is that this section operates at a very early stage in preparation for terrorist activity.  If your Honours look at little (a) and (b) in that paragraph, it is said the interpretation their Honours give applies merely where the terrorist activity is contemplated, and it also applies even where no decision has been made.

The other thing I would like to note is that the word “contemplated” in paragraphs (a) and (b) include contemplated by any person, not just by the accused, and if your Honours look at the word “intended” in paragraph (c), that covers intention by anyone, and that is conveyed at paragraph 317 in the second‑last line, where the judges refer to:

intended by someone –

So, it is sufficient under this construction that there be knowledge ‑ ‑ ‑ 

KIEFEL CJ:   Mr Reynolds, would that be intended by someone who was going to use the weapon, or whatever was to be used in the preparation for a terrorist act, or someone associated with the intended offence?

MR REYNOLDS:   It is sufficient, according to their Honours, if it is intended by someone, whether or not by the possessor of the article.  So, if we are going to - to try and emphasise at what a low level this section cuts in – and can I say this?  For very good reason – as a matter of public policy – because in order to nip these activities in the bud – that is, in order to have an early arrest, this section operates at a very, very early stage.  That is a matter which the Crown points out at page 205 of the application book, about line 17, where they point out that ‑ ‑ ‑

EDELMAN J:   Mr Reynolds, do you mean that it will operate at the very early stage or can operate at an early stage?  It could also operate at a very late stage, could it not?

MR REYNOLDS:   Yes, I guess that follows, your Honour.  But the point is that it operates – if your Honours go to paragraph (a) – at a point where the – 315 – that a terrorist act is contemplated by someone.  As to paragraph (b), some preparatory activity for that terrorist act is contemplated by someone – even if no decision has been made.  As to paragraph (c), the relevant thing – here it is a revolver – is intended by someone to be used in aid of that preparatory activity. 

So, as is pointed out by the Crown at page 205, at line 17, the section operates well before agreement is reached and even when the offender, or offenders, have not decided precisely what they are going to do. The unusual thing about this case is that although, obviously, the Court of Criminal Appeal was bound by the Victorian Court of Appeal – unless they decided this interpretation was clearly wrong – the Court of Criminal Appeal never actually construe the elements of section 101.4(1) in trying to determine whether or not the court below fell into De Simoni error.  Nor, obviously, do they construe that provision in order to ensure that they themselves do not fall into De Simoni error.  

When one turns – I said that there are two steps – one is construction – and just pausing there, we say this is an important question of construction and an important provision in the “war”, as it is called, against terrorists.  Within the second part of the argument – which I need to make good which swings off that – is that when one looks at the facts taken into account – or factual circumstances taken into account by the Court of Criminal Appeal, one can see that within the De Simoni principle, they have taken into account circumstances of aggravation which would have warranted a conviction for the more serious offence in subsection (1).

Can I briefly indicate what those facts are.  The first is to be found in the application book at page 120, line 28, where it is noted that:

Mr Alou disclosed to the applicant that the revolver was to be used for the purpose of a terrorist attack.

So obviously Mr Alameddine, my client, knows that Mr Alou is contemplating a terrorist act from that.  Secondly, on that same page, page 120 at line 42, again Mr Alou revealed to my client:

that there was a very high risk that -

this revolver, which was loaded:

would be used in a terrorist attack -

So again, within paragraph (a) of paragraph 315, my client is said to know that Mr Alou is contemplating a terrorist act.  If one goes to page 121 at line 48, it is said there that my client “anticipated that”, according to the two dictionaries we have given my learned friend, means “realised beforehand” - my client realised beforehand that this loaded:

revolver “would be used to cause death or serious injury”. 

So obviously my client knew that the revolver was intended to be used by someone for a terrorist attack.  Then finally, to complete the picture, at the bottom of page 119, over to 120:

namely that the possession of the revolver was intended to facilitate preparation for . . . or assistance a terrorist act -

So, if one looks at, going back to paragraph 315, paragraph (a), namely ‑ ‑ ‑

KIEFEL CJ:   Just before you do, Mr Reynolds, the passages that you have referred to lead up to the conclusion at paragraph 126, do they not, of the Chief Justice in rejecting the ground of appeal by saying that the sentencing judge was not taking into account knowledge.  He:

was emphasising the very high degree of recklessness involved ‑ ‑ ‑

MR REYNOLDS:   Yes, but the difficulty is that, with all due respect to the Chief Justice, he is not looking at the elements of subsection (1) from paragraph 315.  He looks at it, as it were ‑ ‑ ‑

EDELMAN J:   Mr Reynolds, do you accept that recklessness as to circumstances or recklessness as to a result can involve, or must involve some degree of foresight?

MR REYNOLDS:   Your Honour, in the case of this particular Code, that is dealt with in the Act by way of definitions and that is to be found in the application book at page 156 at the bottom of the page.  That involves or can involve awareness of a “substantial risk” as to a particular result.

EDELMAN J:   So, you accept then that there has to be some degree of foresight of a substantial risk?

MR REYNOLDS:   Well, it is two requirements in section 5.4 in both paragraph (1) and paragraph (2).

EDELMAN J:   Yes, I am just asking you about the first requirement at the moment.

MR REYNOLDS:   Well, your Honour, I have to accept what the statute says and ‑ ‑ ‑

EDELMAN J:   Yes, and if there has to be a degree of foresight or awareness of a substantial risk, do you accept that that degree of foresight can be on a continuum – there can be a small amount of foresight or there can be a large amount of foresight?

MR REYNOLDS:   As long as it is awareness of a substantial risk, I guess that follows, your Honour.

EDELMAN J:   At paragraph 126, is the Chief Justice saying anything more than that this case involves a very high degree of awareness or foresight of the substantial risk?

MR REYNOLDS:   The difficulty is that his Honour’s finding there – or conclusion, whatever one calls it – is not referred back to the construction of subsection (1).  It is, as it were, just hanging in the air, but not off any analysis of the very low threshold at which subsection (1) cuts in – that is the problem, is that there is no…..version at all in this judgment to the very low requirements of subsection (1).

If we go to the various facts, one can see that the facts show beyond any doubt that these various paragraphs or requirements in paragraph 315 are satisfied.  As to (a) that is established because the facts I have taken your Honours to show the defendant knew that someone, namely Mr Alou, contemplated the terrorist act.  As to paragraph (b) ‑ ‑ ‑

EDELMAN J: Mr Reynolds, the Chief Justice could not be talking about 1subsection (1) because he uses the words “recklessness” and “reckless” – he must be talking about section 101.4(2)(c) – that is the requirement of recklessness. The only thing he has not done is add a footnote – a footnote which cross‑references section 101.4(2)(c).

MR REYNOLDS:   Your Honour, he has to be dealing with subsection (1) because he is determining the De Simoni point in relation to what the primary judge did and in rejecting the De Simoni point, he is saying there was only recklessness not knowledge.  But what his Honour, with respect, fails to do is to look at knowledge of what – and that requires focusing on subsection (1) and looking at its requirements and looking at whether the primary judge fell into error by taking into account circumstances which proved…..of subsection (1).

The consequence is that in repeating  - and I have taken your Honours to them – the relevant passages – in repeating what the primary judge has done, the Court of Criminal Appeal, in my respectful submission, fall themselves into De Simoni error, because the facts that I have taken your Honours to, on the construction by the Victorian Court of Appeal, show beyond a shadow of a doubt that the CCA has taken into account facts which demonstrate guilt of the more serious offence in subsection (1).

If I can go to paragraph (b) in paragraph 315, which is about knowledge of someone contemplating preparatory activity for a terrorist attack, it is clear from those four findings I took your Honours to that the defendant knew that Mr Alou contemplated that the revolver would be used to prepare a terrorist act.  In paragraph (c) of paragraph 315, that which talks about knowledge that someone – that is in paragraph 317 – intended to use the revolver to assist in preparation of a terrorist act, that must be established because the facts I have taken your Honours to show that the defendant knew that it was Mr Alou’s intention that the revolver would be used to assist with the preparation of a terrorist act.

If one factors each of those findings into the correct construction of subsection (1) which, with respect, was ignored by the Court of Criminal Appeal, one inevitably gets De Simoni error ‑ ‑ ‑

EDELMAN J:   Mr Reynolds, could you point me to where, in the Court of Criminal Appeal, the court or the Chief Justice says anything which suggests that he is making a finding about 101.4(1)(c)?

MR REYNOLDS:   Your Honour, the whole of this inquiry that they are engaged in is as to whether or not the primary judge fell into De Simoni  error, namely by making factual findings which would prove guilt of subsection (1).

KIEFEL CJ:   Mr Reynolds, at paragraph 120, it is obvious that the Chief Justice is responding in part to a Crown submission about what is necessary for the purpose of 101.4(2)(c).

MR REYNOLDS:   Yes, and part of his argument is that these facts are only showing breach of subsection (2), not showing breach of subsection (1).  He had to determine, look at subsection (1) in order to determine the De Simoni point because the point that is being advanced before the Court of Criminal Appeal is that the facts the primary judge took into account, which are mirrored by the facts that I took your Honours to earlier in the Court of Criminal Appeal’s judgment, those facts establish De Simoni error.  Why?  Because those facts establish breach of the more serious offence in subsection (1). 

At any rate, I think your Honours understand that we raise really the interests of the administration of justice to De Simoni error and also we submit that this case raises the important question of the correct construction of section 101.4. Obviously, paragraph (b) appears in both subsections (1) and (2) and we also submit that there is a public interest in an authoritative determination by this Court on the construction of section 101.4. If the Court pleases, those are my submissions.

KIEFEL CJ:   Thank you, Mr Reynolds.  The Court will adjourn to consider the course that it will take.

AT 2.20 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.22 PM:

KIEFEL CJ:   We need not trouble you, Mr McGuire.

There is no reason to doubt the correctness of the decision of the Court of Criminal Appeal.  A grant of special leave is not warranted.  As a consequence, the application that compliance with rule 41.02.1 be dispensed with is refused.

The Court will now adjourn.

AT 2.23 PM THE MATTER WAS CONCLUDED