CRIMINAL LAW – Terrorism offences – Part 5.3 of Schedule to Criminal Code Act 1995 (Cth) – All applicants convicted of intentionally being members of a terrorist organisation – Some applicants also convicted of further offences under Part 5.3.
CONVICTION – Directions as to meaning of ‘organisation’, ‘fostering’, ‘member’ – Consideration of Lodhi v The Queen (2006) 199 FLR 303, Ul-Haque v The Queen [2006] NSWCCA 241, Kibby v Registrar of Titles [1999] 1 VR 861 and (2007) Lodhi v The Queen (2007) 179 A Crim R 470 – Failure to exclude certain evidence – Failure to discharge jury – Directions on items ‘possessed’ – Consideration of R v Zafar [2008] QB 810 – Whether verdicts unreasonable or cannot be supported by the evidence.
SENTENCE – Whether history of organisation should affect sentence imposed – Whether sufficient weight given to onerous conditions of incarceration and applicants’ mental state – Whether sentences imposed manifestly excessive – Issues of parity – Applicants re-sentenced.
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APPEARANCES:
Counsel
Solicitors
For the Applicant Benbrika
Mr P F Tehan QC with Mr CB Boyce
Doogue and O’Brien Lawyers
For the Applicant Joud
Mr L C Carter
Lethbridges Lawyers
For the Applicant Sayadi
Mr P J Kilduff
Robert Stary Lawyers
For the Applicant Merhi
Mr M J Croucher
Robert Stary Lawyers
For the Applicant A Raad
Mr G A Georgiou
Robert Stary Lawyers
For the Applicant E Raad
Mr M D Stanton
Slade and Parsons Lawyers
For the Applicant Haddara
Mr D C Hallowes
Robert Stary Lawyers
For the Crown
Ms W J Abraham QC with Mr D J Lane
Commonwealth Director of Public Prosecutions
The Crown case at trial
The defence cases at trial
The grounds of appeal
1......... DIRECTION AS TO MEANING OF ‘ORGANISATION’
Arguments on the appeal
Consideration
The meaning of ‘organisation’
Conclusion
2. ....... DIRECTION AS TO MEANING OF ‘FOSTERING’
3......... DIRECTION AS TO MEANING OF ‘MEMBER’
4......... DIRECTION AS TO STANDARD OF PROOF
5......... FAILURE TO EXCLUDE EVIDENCE FOUND AT LOUTH (BURNT BATTERY AND SPARK PLUGS)
6......... FAILURE TO EXCLUDE EVIDENCE OF BENBRIKA’S TRIP TO MT DISAPPOINTMENT
7......... DIRECTIONS IN RELATION TO LIES IN RECORDS OF INTERVIEW
8......... JURY DISCHARGE APPLICATIONS
8.1...... Discharge for sweep by Protective Service Officer
8.2 ..... Internet research
8.3...... Dictionary found in jury room
8.4...... Transcript of conversation 242
9.........…
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.
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Details
AGLC
Benbrika v The Queen [2010] VSCA 281
Case
[2010] VSCA 281
Decision Date
CaseChat Overview and Summary
The case of Benbrika v The Queen involved several applicants convicted of terrorism offences under Part 5.3 of the Criminal Code Act 1995 (Cth). They were found guilty of intentionally being members of a terrorist organisation, and some faced additional charges under the same part of the Act. The applicants appealed against their convictions and sentences, arguing that there were errors in the trial process and that their sentences were excessive.
The court had to address several legal issues, including the interpretation of key terms such as 'organisation', 'fostering', and'member' in the context of terrorism offences. The court examined the meaning of these terms by referring to previous cases such as Lodhi v The Queen, Ul-Haque v The Queen, Kibby v Registrar of Titles, and Lodhi v The Queen. The applicants also contended that certain evidence should not have been admitted, and that the jury should have been discharged. Additionally, the applicants argued that the directions given to the jury regarding items 'possessed' were flawed, drawing on the case of R v Zafar.
In its reasoning, the court found that while there were some issues with the trial, these did not lead to an unsafe or unsatisfactory verdict. The court noted that the jury was adequately directed on the meaning of key terms and that the verdicts were reasonable and supported by the evidence. The court also determined that the sentences imposed were not manifestly excessive, taking into account the history of the organisation, the conditions of incarceration, and the applicants' mental states. The court considered issues of parity and decided to re-sentence the applicants accordingly.