Benbrika v The Queen
[2010] VSCA 281
•25 October 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0525
S APCR 2009 0526
S APCR 2009 0521
S APCR 2009 0522
S APCR 2009 0524
S APCR 2009 0520
S APCR 2009 0523
| ABDUL NACER BENBRIKA | First Applicant |
| AIMEN JOUD | Second Applicant |
| FADL SAYADI | Third Applicant |
| ABDULLAH MERHI | Fourth Applicant |
| AHMED RAAD | Fifth Applicant |
| EZZIT RAAD | Sixth Applicant |
| AMER HADDARA | Seventh Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, NETTLE and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9, 10, 11 and 12 March 2010 |
| DATE OF JUDGMENT | 25 October 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 281 |
| JUDGMENT APPEALED FROM | R v Benbrika & Ors [2009] VSC 21 (Bongiorno J) |
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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......... JUDGE’S CHARGE
10....... FAILURE TO ISOLATE EVIDENCE RELEVANT TO EXISTENCE OF A TERRORIST ORGANISATION, AND EVIDENCE AS TO WHETHER A PARTICULAR APPLICANT WAS A MEMBER
11....... FAILURE TO EXCLUDE EVIDENCE OF EXECUTION VIDEOS
12....... LACK OF SPECIFIC PROPENSITY WARNING ABOUT ‘GARAGE CONVERSATION’
13....... BENBRIKA - DIRECTIONS ON ITEM POSSESSED
What the Mansura CD contained
Whether the item must be connected with a specific terrorist act
Whether there must be a ‘direct’ connection with a terrorist act
The decision in Zafar
Was the judge’s direction adequate?
14....... VERDICT IN RELATION TO COUNT 12 IS UNREASONABLE OR CANNOT BE SUPPORTED
The evidence relied on by the Crown
15....... JOUD – VERDICTS IN RELATION TO POSSESSION COUNTS (7 AND 8) – WHETHER UNREASONABLE OR CANNOT BE SUPPORTED – ABSENCE OF EVIDENCE OF CONNECTION
‘Connected with preparation for a terrorist act’
Was the evidence sufficient?
16....... JOUD - DIRECTION IN RELATION TO ATIK
17....... SAYADI - FAILURE TO QUASH INDICTMENT
18....... SAYADI - FAILURE TO SEVER COUNT 5 ON THE BASIS OF DOUBLE JEOPARDY
19. SAYADI – FAILURE TO EXCLUDE CONVERSATION 24 – THE ‘LEBANON CONVERSATION’
20....... MERHI – FAILURE TO GIVE A GOOD CHARACTER DIRECTION
21....... MERHI – LEAVING THE CASE AGAINST THE APPLICANT ON A BROADER BASIS THAN THE CROWN HAD ALLEGED
22. MERHI – FAILURE TO LEAVE STATUTORY DEFENCE OF WITHDRAWAL........
23....... MERHI – VERDICT ON COUNT 1 – UNCERTAIN OR AFFLICTED WITH LATENT AMBIGUITY
24. AHMED RAAD – FAILURE ADEQUATELY TO SUMMARISE RECORD OF INTERVIEW
25....... ALL APPLICANTS – WHETHER VERDICTS UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO EVIDENCE
25.1.... Atik’s evidence
25.2.... General terrorist organisation offences
25.2.1. The existence of a terrorist organisation – all applicants
25.3.... The remaining elements of the offences
25.3.1. Benbrika – counts 1 and 2 – member and director
25.3.2. Joud – counts 1 and 3 – member and providing resources
25.3.3 Joud – count 6 – attempting to make funds available for a terrorist organisation
25.3.4. Sayadi – counts 1 and 5 – member and providing resources
26....... SENTENCE APPEALS
Summary
26.1.... Abdul Nacer Benbrika
History of the organisation
Conditions under which Benbrika was held in custody pending trial
Double punishment because of the sentences imposed on counts 1 and 2
Excessive non-parole period
Manifest excess
26.2.... Aimen Joud
26.3.... Fadl Sayadi
26.4.... Abdullah Merhi
26.5.... Ahmed Raad
26.6.... Ezzit Raad
26.7.... Amer Haddara
Summary of re- sentencing
THE COURT:
There are before the Court applications by Abdul Nacer Benbrika, Aimen Joud, Fadl Sayadi, Abdullah Merhi, Ahmed Raad, Ezzit Raad, and Amer Haddara, each of whom was found guilty by a Supreme Court jury of terrorism offences against Part 5.3 of the Schedule to the Criminal Code Act 1995 (Cth) (the ‘Code’). Each applicant seeks leave to appeal against conviction and each applicant (except Sayadi) seeks leave to appeal against sentence.
By an amended indictment, each of the applicants – together with Shane Kent, Hany Taha, Bassam Raad, Shoue Hammoud and Majed Raad – was alleged to have committed a series of offences against Part 5.3 of the Code at Melbourne on various dates between 1 July 2004 and 8 November 2005. Izzydeen Atik was originally charged with terrorism offences under the Code arising from the same events. In July 2007, he pleaded guilty to two such offences, and was subsequently sentenced for them.
The trial of the remaining 12 accused began in early February 2008. After a hearing lasting almost eight months, each of the applicants was found guilty of intentionally being a member of a terrorist organisation, knowing that it was such an organisation, contrary to s 102.3(1) of the Code. Some of the applicants were also convicted of further offences under Part 5.3 of the Code. Most importantly, Benbrika was convicted of intentionally directing a terrorist organisation, knowing that it was such an organisation, contrary to s 102.2(1) of the Code. Of the remaining five accused, four were acquitted on all counts and the jury were unable to reach a verdict in respect of the fifth.
The offences with which each applicant was convicted, and the sentences imposed, were as follows:
Count Offence Maximum penalty Sentence imposed Commencement date[1] Benbrika 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 7y 3 February 2009 2 Intentionally directing the activities of a terrorist organisation, knowing that it was a terrorist organisation (s 102.2(1)). 25y 15y 3 February 2009 12 Possession of a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4(1)). 15y 5y 3 February 2009 Total effective sentence: 15y
Non parole period: 12yJoud 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 6y 6m 3 February 2009 3 Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)). 25y 8y 3 February 2009 6 Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)). 25y 8y 3 February 2011 7 Possession of a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4(1)). 15y 5y 3 February 2009 8 Possession of a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4(1)). 15y 5y 3 February 2009 Total effective sentence: 10y
Non-parole period: 7y 6mSayadi 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 6y 6m 3 February 2009 5 Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)). 25y 8y 3 February 2009 Total effective sentence: 8y
Non-parole period: 6yMerhi 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 6y 3 February 2009 Total effective sentence: 6y
Non-parole period: 4y 6mAhmed Raad 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 6y 6m 3 February 2009 4 Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)). 25y 8y 3 February 2009 6 Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)). 25y 8y 3 February 2011 Total effective sentence: 10y
Non-parole period: 7y 6mEzzit Raad 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 6y 3 February 2009 6 Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)). 25y 6y 3 August 2010 Total effective sentence: 7y 6m
Non-parole period: 5y 9mHaddara 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 6y 3 February 2009 Total effective sentence: 6y
Non-parole period: 4y 6m[1]Pursuant to s 19 of the Crimes Act 1914 (Cth), the Court must direct when each sentence is to commence, which has the effect of ordering concurrency or cumulation where the person is being sentenced for more than one offence.
The Crown case at trial
The Crown case at trial was that the applicants were members of a Melbourne-based terrorist organisation, which was fostering or preparing the doing of a terrorist act in Australia or overseas, with the intention of causing death or serious physical harm in order to advance a political, religious or ideological cause. The proposed terrorist act was alleged to be the intentional detonation of one or more explosive or incendiary devices, or the use of weapons. The cause to be advanced by terrorist action was said to be the belief – taught by Benbrika and accepted by members of the organisation – that they were under a religious obligation to pursue violent jihad against the kuffar (non-believers).
The Crown advanced a largely circumstantial case, the key elements of which were as follows:
(1) members of the organisation referred to themselves collectively as the jema’ah, an Arabic word meaning ‘group’ or ‘association’, and took an oath of allegiance to Benbrika called a bayat;
(2) some members of the organisation undertook specific roles and responsibilities;
(3) members received religious instruction from Benbrika in the pursuit of violent jihad as a religious obligation;
(4) in order to instil the motivation and knowledge necessary to commit terrorist acts, the organisation collected extremist Islamic doctrinal and operational material and circulated it among members;
(5) money was collected from the members to fund the organisation’s activities and some members undertook illegal activities, including illicit car re-birthing and credit card fraud, in attempts to raise additional funds for the organisation;
(6) the organisation spent money from the fund on group activities and other outlays as approved by Benbrika; and
(7) members also undertook team building/bonding activities, including trips away to training days and camps, sometimes with other terrorist organisations.
The Crown relied to a large degree on 481 conversations which were covertly, but lawfully, recorded by use of telephone intercepts (TI)[2] and listening devices (LD).[3] At the outset of the trial, the jury were provided with a table listing the date and time of each conversation, numbered chronologically from 1 to 482, with the names of the speakers involved.[4] As far as practicable, the recordings were then played to the jury in chronological order.
[2]Although the Crown initially sought to play 482 conversations it subsequently withdrew conversation 326 during the course of the trial. Some of these conversations, or parts of them, were played by the Crown at the request of the legal representatives of the accused.
[3]The Crown sought to supply to the jury a version of a document listing the conversations, and which also contained a summary of each conversation. Following objections on behalf of the accused, the trial judge ruled that the summaries should not be provided to the jury; R v Benbrika (Ruling No 11) (2007) 183 A Crim R 454.
[4]There was no dispute about the accuracy of the translations. The transcripts of the translations were admitted into evidence by agreement, without the need to call evidence from an interpreter, pursuant to an order made by the trial judge under the Crimes (Criminal Trials) Act1999 (Vic).
The sound quality of the TI and LD recordings was relatively good. The majority of the conversations were conducted in English, albeit often interspersed with some Arabic, while a small number of conversations were conducted wholly or substantially in Arabic. Where words in the transcripts were translated from Arabic to English, they appeared in the transcripts in bold text. No significant objection was made as to the accuracy of the transcripts, although, in a small number of instances, the Crown and the accused disagreed on the words that could be heard.[5] In those cases, the two different interpretations were brought to the attention of the jury as the recordings were played to them and the written transcripts made note of the two competing interpretations.[6] Each juror was also provided with a full set of the transcripts of the TI and LD conversations for the duration of the trial. The jury were instructed, however, that (in relation to conversations in English) the transcripts were merely an aid and that the evidence consisted of the actual recordings.
[5]The Crown’s interpretation was underlined and that of an accused was italicised. By way of example, in conversation number 58 the differing interpretations of the words spoken on the recording are displayed as ‘do we have to kill him and his family or can we just [kill/tell] his people’. Thus, the Crown contended that the disputed word was ‘kill’ and the accused asserted that it was ‘tell’.
[6]Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180.
The Crown also tendered a large quantity of extremist, jihadi literature and violent videos, seized during police investigations of the organisation.[7] It also tendered TI and LD evidence which supported its contention that Benbrika used the seized material in the course of teaching members. Much of the material was an apologia for the pursuit of violent jihad on religious grounds. The Crown case was that Benbrika used the material to energise, motivate and simultaneously desensitise members of the group.
[7]Computer equipment and files were seized under warrant from various premises at various times. A list of the documents, including videos and other multi-media, were presented to the jury in the course of the trial.
In addition, there was evidence that many of the accused were found in possession of written documents about violent jihad and the permissibility, on religious grounds, of martyrdom operations. Much of that material had been obtained from the internet. Further to this, there was TI and LD evidence of the discussions among the accused regarding those documents. The Crown contended that a number of the documents had been circulated within the membership.
Further TI and LD evidence was adduced to prove the content of discussions concerning material of interest stored, and viewed, on a group laptop computer (apparently kept by Joud). The material on the laptop included such things as beheading videos and footage of acts of violence carried out in Iraq and other areas of conflict. This evidence was said to demonstrate that members typically gathered around the laptop at various members’ homes to view and discuss the material. The Crown also relied on the fact that many such videos were found in the possession of a number of the accused, and that their viewings of the material were often accompanied by expressions of delight upon seeing kuffar killed at the hands of the Muslim brothers.
Material found on computers and compact discs (‘CDs’) seized from several of the accuseds’ premises included bomb-making manuals, combat literature and guides for those seeking to carry out acts of terrorism. Significant relevant titles found were: ‘Mansura’ (including ‘The Mujahid’s Handbook’), ‘The Terrorist’s Handbook’, ‘The White Resistance Manual’ and ‘The Vortex Cookbook’. There were also recordings of speeches by Osama bin Laden and other prominent jihadists.
As well as the TI and LD evidence, the Crown called viva voce evidence from police and civilian witnesses, surveillance evidence, evidence from one undercover police operative (‘SIO 39’) and expert evidence.
The Crown contended that, taken as a whole, the evidence – in particular, the TI and LD evidence and items found in the possession of members – established beyond reasonable doubt the existence of the organisation, its objectives, and the fact that each of the accused was a member (count 1). In addition, the evidence was said to prove that:
·Benbrika was a director of the organisation (count 2);
·Joud, Ahmed Raad and Sayadi had each intentionally provided resources to a terrorist organisation (counts 3, 4 and 5);
·Joud, Ahmed Raad and Ezzit Raad had each attempted to make funds available to a terrorist organisation (count 6);
·Joud had possessed things in connection with preparation for a terrorist act (counts 7 and 8); and
·Benbrika had likewise possessed things in connection with preparation for a terrorist act (count 12).
More precisely, it was said, the evidence established that Benbrika was the amir or leader of the organisation, and that he was supported in that role by a ‘consultative committee’ comprised of Joud, Sayadi and Ahmed Raad. Joud was identified as Benbrika’s right-hand man, and Sayadi as having a role concerned with security. Ahmed Raad was identified as the treasurer. Membership of the organisation was exclusively male, and exclusively Muslim.
The Crown alleged that, as part of Benbrika’s instruction of members in violent jihad, he taught them that death in pursuit of ‘Allah’s cause’ was desirable, and that death in pursuit of violent jihad resulted in martyrdom and thus entry into paradise.
The TI and LD evidence was said to show that the organisation equipped members with the knowledge, motivation and confidence to carry out terrorist acts, or to assist others to do so. In particular, it recorded Benbrika telling members that Australia’s involvement in the conflicts in Iraq and Afghanistan meant that Australia was a ‘land at war’, and thus that members were obliged to pursue violent jihad in Australia, and against Australian interests overseas, as part of a worldwide violent struggle against those perceived to be enemies of Islam. Benbrika cited terrorist acts committed by mujahideen around the world, including the bombings in New York and Washington, Bali, Madrid, Jakarta, London and Iraq, as exemplars to be admired and emulated.
According to the Crown case, it was apparent that the extremist motivational literature and videos had been used to energise, desensitise and otherwise motivate members of the organisation to commit terrorist acts, and that ‘How To’ guides and field craft manuals, including ‘The Mujahid’s Handbook’, ‘Car Bomb Recognition Guide’, ‘The Terrorist’s Handbook’ and ‘The White Resistance Manual’, had been used to instruct members on how to kill and maim with optimum effect and so cause ‘maximum damage’. Joud was found in possession of the ‘Manuals CD’ which contained bomb-making instructions (count 7). Both Joud and Benbrika were found in possession of copies of the ‘Mansura CD’ (counts 8 and 12).
Other evidence was relied on as establishing that the organisation collected money from its members by way of zakat (a form of religious tax) to be added to a fund referred to as a sandooq (literally, a box).[8] The evidence was said to demonstrate that the money was intended to finance organisation activities approved by Benbrika. These activities included the commission of terrorist acts involving the use of firearms and chemical explosives. There was evidence to show that some members engaged in criminal activities (theft and fraud) in attempts to raise funds for the organisation (count 6), pursuant to Benbrika’s pronouncement that it was legitimate under Islamic law to seize the wealth, and shed the blood, of the kuffar.[9]
[8]See, for example, conversations 107, 120, 126, 130, 134, 341 and 402.
[9]Another discussion about this doctrine occurs in conversation 135. See also seized documents entitled Essay Regarding the Basic Rule of the Blood, Wealth and Honour of the Disbelievers and The Battlefield the Safest Place on Earth both of which espouse this doctrine.
Further important facts said to be established by the TI, LD and other evidence were that members had given the bayat – in effect, a pledge – to Benbrika to obey his directions.[10] The recorded conversations were also said to demonstrate that members undertook team building, bonding and training activities. Some of the applicants, and others, attended camps or went to locations where the activities of the organisation could more easily be conducted without being observed by the authorities. It was said that secrecy was maintained in order to ensure that the objectives of the organisation could be fulfilled. The evidence was that members treated each other as trusted brothers, and regarded outsiders and newcomers with suspicion.
[10]See, for example, conversations 137, 247, 255, 440 and 441.
Members were conscious of, and concerned about, police and other governmental agencies’ interest in the organisation. They were aware that, because of the nature of their activities, there would be consequences if they were caught. The recordings showed that Benbrika counselled members to be patient during the period of government surveillance. Members were warned to exercise caution in the use of telephones (many of which were registered in false names). They were alert to surveillance, and aware of the need to hide items in which they assessed the authorities would be interested.[11] In an effort to overcome surveillance of their telephone conversations, they sometimes used code words to disguise the nature of
[11]For example, the sandooq, the diskettes containing bomb-making instructions and CDs containing jihadi material.
their activities.[12] Some members expressed violent intentions towards those suspected of informing on them. In the course of a large number of the recorded conversations, members of the organisation used the expressions ‘do something’, ‘doing something’ or words to similar effect to describe committing the type of terrorist act which they contemplated would advance the objectives of the organisation.
[12]In conversations 265, 266, 268, 319 and 320, for example, references to going fishing are used to refer to bonding and training trips. In conversation 463 ‘tiles’ is used to refer to weapons.
The defence cases at trial
The defence cases at trial were more confined. None of the applicants gave evidence.
Benbrika’s defence was that the TI and LD evidence was not to be interpreted literally, in the fashion suggested by the Crown, but rather against the background that he was from a male culture and was intoxicated with self-importance and fantasy. It was said that his frightening utterances were not sufficient reason to infer offences of the kind alleged. Finally, it was said that, given that no terrorist act was ever committed, the Crown had failed to prove intent.
Joud’s case was that he was committed to the Islamic faith, but not to violent jihad in the sense alleged by the Crown. His counsel claimed that the evidence showed that, in any event, he had moved away from the group later in the period covered by the indictment. It was submitted that the evidence did not sustain the conclusion that he took the bayat. It was further submitted that the Crown had failed to prove the existence of an organisation of sufficient structure to constitute a terrorist organisation within the meaning of the Code. Moreover, although he may have had the intention of being associated with the group, it was said that he did not know it to be a terrorist organisation, and had no intention of joining any such body.
Joud contended, in respect of count 3, that it was not possible, as a matter of law, to provide resources to an organisation from within that body.[13] It was said that there was no evidence of any terrorist act having been committed and no evidence of any planning for the commission of any such act. It was argued that the evidence as to attempting to make funds available to a terrorist organisation went no further than establishing that Joud had been involved in car theft but without the objective of funding a terrorist organisation. Finally, as to counts 7 and 8, it was said that the Crown had failed to show that the items found in his possession were relevantly connected with preparation for a terrorist act, or if they were, that he was aware of that fact.
[13]The judge directed the jury to the contrary.
Sayadi’s defence was that, taken in context, neither the TI and LD evidence, nor the evidence of training and trips, supported the case against him. He pointed to the fact that he was not present at a number of the conversations relied on by the Crown to establish the existence of the organisation. He also argued that, no matter what items had been found in his possession, there was no evidence of any plan to actually do anything, and no explosives. There was only jihadi literature and propaganda, which was not sufficient from which to infer the existence of a terrorist organisation, or his membership of such a body.
Merhi’s defence was that he stood out from among the other accused in that, so far from being committed to violent jihad, the evidence showed that he was committed to da’wa, a form of Islamic proselytising that does not involve violence or incitement to violence. His case was that he had never signed up for terrorism, and was not a member of a terrorist organisation. He did not take part in any of the training trips away. While he may have been heard saying ‘stupid things’ on some of the recordings, his comments did not amount to evidence of his membership of a terrorist organisation. The evidence showed that he questioned Benbrika and did not accept everything that he was told. He was not found in possession of anything remotely connected with terrorism, and, in any event, the evidence showed that, with the passage of time, he drew away from the group and adopted a moderate non-violent stance which he encouraged others to accept.
Ahmed Raad’s defence was also that the material relied upon by the Crown should not be interpreted as the Crown contended it should be. He too argued that the evidence did not establish that he was a member of a terrorist organisation, still less a member of its consultative committee. He contended that his having been the keeper of the sandooq did not equate to his being the treasurer of a terrorist organisation. Properly interpreted, the evidence showed that the sandooq was used for outlays unrelated to terrorism. While the so-called common library might be regarded as containing extremist material, there was evidence that many young Muslim men were sufficiently interested in material of that kind as to download it and view it without subscribing to terrorism. Moreover, there was no evidence that he had read much of the violent jihad material at all.
Ezzit Raad’s defence was that the evidence showed him to have been involved in car stealing but no more. He featured in only 23 of the 482 recorded conversations. His case was that he was a young man, frustrated and powerless in a hostile environment, but not a member of a terrorist organisation. He was not involved in credit card fraud, or in obtaining mobile phones in false names, or in fraudulently obtaining airline tickets. His fingerprints were found on only one of the numerous exhibits tendered at the trial. In addition, there was no evidence that he had taken the bayat. Accordingly, he argued that, upon the whole of the evidence, the Crown had not proved its case against him.
Haddara’s defence was that the Crown had not proved that there was an organisation, still less that it was a terrorist organisation. He argued that there was no evidence that he took the bayat. He claimed that the conversations upon which the Crown relied should not be interpreted as the Crown contended. In many cases, although he was present during conversations on which the Crown relied, his silence should not be construed as agreement with what was said during the conversations.
The grounds of appeal
There are a large number of grounds of appeal, albeit that many are common to some or all of the applicants. We propose to deal with them essentially in the order in which they were argued before us. The numbering attributed to the grounds is our own. Much of the oral argument was taken up with what we have designated as grounds 1 and 2. These were common to all applicants, as were most of the grounds between 3 and 12, and ground 25. The grounds designated 13 to 24 were advanced by specific applicants, and have been dealt with accordingly.
1.DIRECTION AS TO MEANING OF ‘ORGANISATION’
Each of the applicants was convicted of an offence or offences under Division 102. Division 102 of the Code is headed ‘Terrorist organisations’. It contains a series of provisions creating offences, a key element of which is proof that there exists a ‘terrorist organisation’. For example, s 102.3 makes membership of a terrorist organisation an offence. It provides that:
(1) A person commits an offence if:
(a) the person intentionally is a member of an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the person knows the organisation is a terrorist organisation.
Subsection (2) provides that subsection (1) does not apply if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after learning that the organisation was a terrorist organisation.
The Code defines ‘organisation’ in s 100.1 as follows:
organisation means a body corporate or an unincorporated body, whether or not the body:
(a) is based outside Australia; or
(b) consists of persons who are not Australian citizens; or
(c) is part of a larger organisation.
Section 102.1 provides that a ‘terrorist organisation’ means:
(a)an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs); or
(b)an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4)).
The definitions of ‘organisation’ in s 100.1, and ‘terrorist organisation’ in s 102.1, necessitate reference to the definition of ‘terrorist act’ in s 100.1(1). That definition is as follows:
terrorist act means an action or threat of action where:
(a)the action falls within subsection (2) and does not fall within subsection (3); and
(b)the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c)the action is done or the threat is made with the intention of:
(i)coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.
Under s 100.1(2) an action can constitute a ‘terrorist act’ if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person’s death; or
(d)endangers a person’s life, other than the life of the person taking the action; or
(e)creates a serious risk to the health or safety of the public or a section of the public; or
(f)seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
(i)an information system; or
(ii)a telecommunications system; or
(iii)a financial system; or
(iv)a system used for the delivery of essential government services; or
(v)a system used for, or by, an essential public utility; or
(vi)a system used for, or by, a transport system.
Under s 100.1(3), however, an action will not constitute a ‘terrorist act’ if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i)to cause serious harm that is physical harm to a person; or
(ii)to cause a person’s death; or
(iii)to endanger the life of a person, other than the person taking the action; or
(iv)to create a serious risk to the health or safety of the public or a section of the public.
Each applicant, apart from Sayadi, took exception at trial to the trial judge’s directions to the jury regarding the meaning of the term ‘organisation’. A number of separate arguments were advanced, and replicated before this Court. Before dealing with those arguments, it should be noted that much of the debate surrounding the term ‘organisation’ at trial centred upon an issue that is no longer of any relevance.
The parties were at odds below as to whether the term ‘organisation’, as used in the Code, should be understood in a special sense, or whether it carried its ordinary meaning. If that term was used in a legal or technical sense, the trial judge was required to give a specific direction as to its meaning. If, however, the term was used in its ordinary sense, no such direction was required. Basically, the defence argued for a specific direction, while the Crown submitted that the matter should be left to the jury to determine for themselves.
Ultimately, his Honour ruled in favour of the defence on that issue.[14] It followed that the jury had to be given a binding direction as to its meaning. His Honour then directed the jury as follows:
In approaching this issue, you must put out of your mind anything you know about what an organisation is outside or what it might be in some other circumstance. We’ve got to apply the law as it applies to this Act, and whilst it’s not unusual, it’s somewhat complex, and I’m going to have to explain it to you carefully.
The law defines an organisation as a body corporate or an unincorporated body. A body corporate is a body which is registered with [the Companies] Office or something and has an independent existence apart from its members. It’s a legal entity. You can completely forget that. No one is suggesting here that any body corporate is involved. The second part of the definition is an unincorporated body. This is a legal question, and the directions I give you about it, you must follow. As I say, it is exclusive of any other idea or concept about organisation you might have had or got from anywhere.
An unincorporated body is a body which, of itself, has no separate legal existence apart from its members. In other words, it consists of people, a group or collection of people who come together for a particular shared aim or aims, it might have one aim, it might have many, or purposes. It may have characteristics which suggest its existence; it may have some sort of structure; there may be a leader or a director; there may be other people who hold or assume other offices in the organisation. Here the Crown alleges that Benbrika, Joud, Sayadi and Ahmed Raad held leadership positions in the terrorist organisation which it says existed. You will have to consider these allegations in due course when we get to the evidence.
There may be a common fund for the purposes of the body. Here the Crown alleges that there is, and that it’s called the sandooq, an Arabic word which merely means box which is commonly applied to a communal fund. Again, you will have to consider this aspect when we get to the issues that raise it.
The body may have some method of including or excluding persons from membership. There may or may not be some degree of formality to its meetings, whether as to time and place or how they are conducted. It may or may not have a name, either publicly known or used internally by its members. All or some of these characteristics may be present but whether some of them are or not, to constitute a body, there must be more than a fluctuating or amorphous group of individuals. There must be some measure at least of stability of membership. Even if some members may have joined and some may have left during the period of its existence.
You might be able to be assisted by my pointing it out to you and you realizing it because you know it already, that a body is different, say, to a crowd. You could say a crowd gathered outside the pub where there was a fight, and half an hour later, you could say the crowd was still there. It would be unlikely that it would be the same crowd or the same individuals. You wouldn’t describe that as a body. That might be an amorphous group of individuals who have come together because they were interested in the police arresting someone causing a commotion and the commotion goes on a bit further and then people begin talking, some leave and some come back in half an hour’s time. To say the crowd is still there as a matter of use of English is not unreasonable and you might well say it, but if you think about it, it’s highly unlikely it’s composed of the same people who were there half an hour ago. It might be, of course, they all might have wanted to watch the end of it. But you wouldn’t describe that as a body. It’s got to have something more to it than that. It’s got to have some sort of form.
The sorts of criteria that I have set out there are the sorts of things that you look at when you are looking at the evidence, and if you see them, you say, “That is another indicator”, or, “It’s not an indicator”. It’s a matter ultimately for you in accordance with those legal directions that I have given you. That is the term “organisation”.[15]
[14]R v Benbrika (Rulings No 35.01-35.11) [2009] VSC 142, [97]–[105]. His Honour referred, in that regard, to Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 in which the High Court referred with qualified approval to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.
[15]Emphasis added.
In addition to that oral direction, his Honour provided the jury with a written screed as to the meaning of the term ‘organisation’, which was largely in the same terms.
Arguments on the appeal
It was submitted on behalf of the applicants that, although the trial judge had ruled in favour of the defence that the term ‘organisation’ was used in a legal or technical sense, and therefore had to be defined for the jury, no such binding definition had in fact been given. It was submitted that his Honour had, in his charge, left the meaning of that term open, so that the jury might interpret it according to their own understanding. This was because of his repeated use of the term ‘may’ when he directed the jury as to how they might resolve the question whether an ‘organisation’ existed.
It was further submitted that his Honour’s charge was defective because it stipulated only one indispensable criterion for the existence of an ‘organisation’, namely, the requirement that there be ‘shared aims or purposes’ among the individuals concerned. All of the other indicia to which his Honour referred were said to have been treated as optional, the jury having been told only that they ‘could’ or ‘may’ be present. This latter submission cannot be accepted. It is clear from his Honour’s charge that he also indicated that ‘stability of membership’ was an indispensable element in any concept of an ‘organisation’.
Counsel submitted that his Honour’s expression, ‘shared aims or purposes’, itself required further explanation. It was submitted that the jury had to be told, in clear terms, which of any ‘shared aims or purposes’ could suffice to render the group an ‘organisation’, and which of those aims or purposes could not do so.
In his written submissions, counsel for Ahmed Raad argued that, in addition to the requirement that there be ‘shared aims or purposes’ and ‘some measure of stability of membership’, an ‘organisation’ could not exist without five further characteristics. These were:
·a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method for the identification of its members (Kibby v Registrar of Titles[16]);
·some form of internal structure which enables it to take and implement decisions as a collective (Cometa United Corporation and Tradeswood Shipping Company v Canterbury Regional Council[17]);
·a similar general structure to a company, in the sense that it will have a decision-making process, people who have governance responsibilities and such like (a pseudo-corporate structure). (Cometa[18]);
·a ‘sufficient’ structure – ‘that one can discern whether a person is or is not a member of it’; and
·the ability to include and exclude members.
[16][1999] 1 VR 861, 872.
[17](2007) 14 ELRNZ 20, 33 (‘Cometa’).
[18]Ibid.
Counsel further submitted that, in order to find that an ‘organisation’ existed, there had to be some method by which the actions of individuals could be attributed to the body said to constitute the ‘organisation’. In order to achieve this attribution, it was essential that there be an identifiable ‘structure’. Otherwise, the actions of any particular individual might simply be personal to that individual, rather than the actions of the ‘organisation’.
According to this submission, the fact that some of the alleged members of the group were deliberately kept ignorant of the activities of the others showed that no ‘organisation’, in the relevant sense, ever existed. Moreover, it was submitted, the jury should have been directed that they could not use the acts and declarations of any particular accused as evidence of preparation for a terrorist act, unless those acts and declarations had been expressly, or impliedly, authorised by other members of the group. It was said that his Honour’s failure to direct the jury in those terms meant that the charge was flawed.[19]
[19]Counsel for Ahmed Raad noted that, at trial, exception had been taken by senior counsel for Benbrika to his Honour’s failure to direct as to the need for authorisation. However, his Honour had declined to redirect the jury.
In the course of oral argument before this Court, senior counsel for Benbrika sought to develop this last point into a separate attack upon his Honour’s charge. He did so notwithstanding that the point was not the subject of any ground of appeal. He submitted, however, that he had addressed the matter, albeit somewhat opaquely, in his written submissions.
Put simply, the argument advanced before us was that the jury should have been told that, when determining whether the Crown had established the existence of an ‘organisation’, they had to do so separately in relation to each accused. In doing so, they could only have regard to the evidence specifically admissible against the particular accused whose case they were, at that moment, considering. In particular, they should have been told that they could not use the acts and declarations of any of the other accused to assist in resolving that issue.
Consideration
We deal with the last argument first. The argument bears no resemblance to the way in which this matter was approached at trial. It was common ground before the trial judge that whether or not an ‘organisation’ existed was a matter of inference, to be determined on the evidence as a whole. It was accepted by all parties that the jury should be invited to resolve that question in accordance with the various indicia identified by his Honour in his charge. It was further accepted by all parties that it would only be after they had determined that an ‘organisation’ existed that the jury would go on to consider whether or not any individual accused had ever been a ‘member’ of that ‘organisation’. In determining the question of membership, the jury would only have regard to the evidence admissible against the particular accused whose case they were then considering.
It is of particular significance that this matter was only raised before this Court in oral argument, and found no mention in the copious written submissions filed in advance of the hearing. As we have said, not only was the point now sought to be made not raised below, but the trial had proceeded on an agreed basis which was the exact reverse of what is now contended. As this Court has said repeatedly in recent times, it is not permissible to raise points on appeal which are premised on a different trial having been conducted from the trial which actually took place.[20]
[20]R v Luhan [2009] VSCA 30, [37]. Cited with approval in R v Momcilovic (2010) 265 ALR 751, 794; and Miechel v The Queen [2010] VSCA 225, [30].
In any event, this new point is without substance. Proof that an ‘organisation’ existed did not turn upon any evidence that would only have been admissible against a particular accused. There were, for example, no admissions relied upon to establish this element. Rather, as we have said, the evidence upon which the Crown relied to establish that such an ‘organisation’ existed was entirely circumstantial. The jury were invited to infer from what the individual accused and others said and did, that a body of that kind had been formed.
The Crown did not rely upon the acts and declarations of others as an exception to the hearsay rule in order to prove the existence of the ‘organisation’. Rather, and to the extent that those acts and declarations were relevant, they were received as original evidence. That is, the Crown relied on the fact that things were said and done as giving rise to the inference for which the Crown contended. The Crown case, in this respect, was based upon similar principles to those invoked when it is sought, in a case of preconcert, to prove the existence of that preconcert. It is only after the preconcert has been shown inferentially to exist that there is scope for the so-called ‘co-conspirators’ rule’ to operate. It is at that stage, but only then, that the acts and declarations of those said to have acted in preconcert with each other, in furtherance of the agreement, are admissible against each other.[21]
[21]R v Associated Northern Collieries (1911) 14 CLR 387.
The point is illustrated by reference to Tripodi v The Queen.[22] In a joint judgment, Dixon CJ, Fullagar and Windeyer JJ said:
When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case.[23]
[22](1961) 104 CLR 1 (‘Tripodi’).
[23]Ibid 7.
Their Honours continued:
It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts. It is customary at criminal trials simply to treat the presence or absence of the prisoner as decisive of the admissibility of things said and it is a pity to rob that empirical but practical and convenient test of any of its usefulness. But often enough in an ordinary case where there is no confederation or preconcert, directions, instructions and the like although spoken in the absence of the prisoner may, according to the circumstances of the case, be admissible as res gestae or relevant facts. It is easy to understand therefore that preconcert confederacy or combination may make such directions and the like admissible when they are given by one of several acting in preconcert with the prisoner and are given in furtherance of the common design. In the present case the things said and done when the prisoner was not present or within earshot are for the most part of this character and are admissible as part of what was done in furtherance of the common criminal purpose.[24]
[24]Ibid 7–8.
The point is further illustrated by reference to the following passage in the judgment of Young CJ in R v Minuzzo & Williams.[25] That was a case of conspiracy, however, what was said has general application to preconcert:
An accused person is entitled to have his case considered upon the evidence admissible against him. In a conspiracy case such as the present there are three classes of evidence to be considered, namely (a) evidence of the acts and declarations of the accused whose case is being considered, (b) evidence of the acts and declarations of co-accused from which the conclusion that there was a combination might be drawn, and (c) acts and declarations of co-conspirators done or made in pursuance of the combination. Most evidence which falls within category (b) will also fall within category (c). Those two categories are not intended to be either co-extensive or mutually exclusive.
Evidence in category (b) may be used in order to establish the conspiracy: see R v Associated Northern Collieries and Tripodi v R. Evidence in category (c), which is sometimes described as evidence in furtherance of the conspiracy, may only be used against an accused whose case is being considered once there is some evidence that that accused is connected with the conspiracy. But it is not necessary that the jury should be satisfied of the guilt of the accused before they can use evidence of category (c). Satisfaction of guilt of course requires satisfaction beyond reasonable doubt. But evidence falling into category (c) can be used against an accused once prima facie proof of the accused's connection with the conspiracy has been given… The prima facie evidence which is here referred to is evidence described as directly admissible against the accused connecting him with the conspiracy alleged. By evidence directly admissible against the accused is meant in this context evidence other than the acts and declarations of the alleged co-conspirators not in the presence of the accused. Whether there is sufficient evidence directly admissible against an accused connecting him with the conspiracy to make evidence in category (c) available to be used against him is a question for the jury.[26]
[25][1984] VR 417.
[26]Ibid 431 (citations omitted, emphasis added).
If the existence of a conspiracy can be established, inferentially, by having regard to what was said and done by the alleged co-conspirators, and others not said to be part of the conspiracy, the same must be true when considering whether a combination such as that alleged in this case has been proved, namely, an ‘organisation’.
In Ahern v The Queen,[27] the High Court made the point very clear:
Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant. The words “reasonable evidence” have provided a standard which has been applied without difficulty in this country for some years, at least in cases where preconcert has been the basis upon which evidence has been led in cases other than conspiracy, and there is no reason to suppose that if it has provided an appropriate test in those cases, it will not do so where conspiracy is charged.[28]
[27](1988) 165 CLR 87 (‘Ahern’).
[28]Ibid 100.
The point, quite simply, is that there can be ‘reasonable evidence’ of a combination or conspiracy which is purely circumstantial, and does not depend upon treating the statements made by those said to be participants as evidence of the truth of that which was asserted. The statements are received as original evidence, and are relevant because inferences can properly be drawn from what the various participants were saying.
As we have said, it was common ground at the trial that, when it came to determining whether a particular accused was a member of the ‘organisation’, the position altered. At that stage, the jury were told in the clearest of terms that they could only have regard to the evidence specifically admissible against the accused whose case they were then considering. That was the basis upon which the trial proceeded, with the unanimous consent and endorsement of all parties. We would take a great deal of persuading, having regard to that fact, to conclude that his Honour’s direction was erroneous or had led to a miscarriage of justice.
This was not the only submission advanced before this Court that bore little resemblance to the way in which the trial was conducted. It was submitted, in oral argument, that the trial judge ought to have directed the jury that, before they could find that an ‘organisation’ had come into existence, they first had to identify who were its ‘members’. Logically, so it was said, that could only be done by having regard to the evidence that was separately admissible against each accused. Accordingly, it was submitted, there could be no finding of a general nature that an ‘organisation’ existed, but only a series of individual findings, each relating to a particular accused.
We are not persuaded by that submission. The trial was conducted throughout on the basis that count 1, alleging membership of a terrorist organisation, gave rise to two separate issues. The first was whether the Crown could prove the existence of an ‘organisation’. The second was whether it could establish against each individual accused, on the basis of the evidence separately admissible against that particular accused, that he was a ‘member’ of that ‘organisation’.
In our view, there was nothing untoward in adopting that approach. It was perfectly sensible to invite the jury to consider first whether the Crown had established the existence of an ‘organisation’, and only then to consider whether it had proved against each individual accused that he was relevantly a ‘member’. Indeed, it would be difficult to approach the matter in any other way. It is hard to imagine how a jury could determine whether a particular accused was a ‘member’ of a body that they had not yet determined existed.
It is obvious, of course, that there cannot be an ‘organisation’ unless it has ‘members’. It does not follow that the question of membership can be resolved in the abstract, without it having first been determined that there is in existence a body to which such membership can attach.
The meaning of ‘organisation’
That takes us to the central point of the first ground. The issue is whether his Honour misdirected the jury as to the meaning of the term ‘organisation’, and thereby enabled them to be satisfied of this element without adequate proof of its existence. For reasons which follow, we are satisfied that no such error has been shown.
The starting point in approaching all of the issues concerning the statutory language in Part 5.3 of the Code, and in assessing the adequacy of the judge’s directions on particular statutory terms, must be to recognise the somewhat unusual nature of the terrorism provisions. In Lodhi v The Queen,[29] Spigelman CJ (with whom McLellan CJ at CL and Sully J agreed) said:
Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, eg well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy.[30]
[29](2006) 199 FLR 303 (‘Lodhi No 1’).
[30]Ibid 318.
Lodhi No 1[31] was concerned with offences under Division 101 of the Code (Terrorism), and not Division 102 (Terrorist organisations). Subsequently, the New South Wales Court of Criminal Appeal, in Ul-Haque v The Queen,[32] concluded that the principles set out in Lodhi No 1[33] applied with equal force to the construction of the offences contained in Division 102.
[31](2006) 199 FLR 303.
[32][2006] NSWCCA 241 (‘Ul-Haque’).
[33](2006) 199 FLR 303.
As noted earlier, the trial judge identified various indicia which he invited the jury to consider when determining whether the Crown had established that there existed an ‘organisation’. In directing the jury in that way, his Honour drew heavily upon the analysis of the term ‘association’ by Mandie J in Kibby v Registrar of Titles.[34] That case concerned a parcel of land held by trustees, initially for a fluctuating group of individuals and later, so it was said, for an unincorporated association. That body claimed to have had a sufficient degree of organisation and continuity to indicate that it had been in existence at a particular date. Mandie J had to determine whether there was, as at the date, merely an amorphous or fluctuating group of individuals, or a combination sufficient to enable it to be described as an ‘association’.
[34][1999] 1 VR 861 (‘Kibby’).
As Mandie J observed, an unincorporated association (sometimes called an unincorporated body) has no legal existence separate or distinct from its members.[35] It is ‘an artificial and anomalous conception’ which, ‘though not a separate entity in law, is yet for many purposes regarded as a continuing entity’ and, however inaccurately, ‘as something other than an aggregate of its members’.[36] Such an association is formed by the mutual understanding of its members. It consists of nothing more than the aggregate of its members at a particular time. In effect, an unincorporated body is a voluntary combination of persons with some object or purpose in common.[37] If the body has assets, they belong, subject to the rules, to the members for the time being.[38]
[35]Carlton Cricket & Football Social Club v Joseph [1970] VR 487.
[36]Leahy v Attorney-General (NSW) (1959) 101 CLR 611, 619 (Viscount Simonds).
[37]Amos v Brunton (1897) 18 LR (NSW) Eq 184, 186–7.
[38]Doust v Attorney-General (1904) 4 SR (NSW) 577, 583.
The main characteristic of an unincorporated association is, of course, that it does not enjoy legal personality.[39] It is simply a voluntary association of persons who share common aims or interests. As a result, an unincorporated association cannot enter into a contract, or acquire, hold, or dispose of property in its own name.[40]
[39]Trustees of Roman Catholic Church v Ellis (2007) 70 NSWLR 565, 576 (Mason P).
[40]Freeman v McManus [1958] VR 15, 18.
Common examples of unincorporated not-for-profit organisations are: social clubs, sporting clubs, religious groups, charitable organisations, educational associations, and scientific societies. Organisations of this kind are generally managed by a committee chosen from among the members. As an unincorporated association has no legal personality, it cannot be held liable in its own name. Such liability is imposed on the members of the committee personally, as principals and not as agents.[41] Although the members of the committee act on behalf of the association, they may not be entitled to indemnity for any payments they make to discharge its debts, or in respect of liability in tort. In that sense, the liability of committee members may be contrasted with that of the directors of a company.
[41]Bradley Egg Farm Ltd v Clifford [1943] 2 All ER 378.
Unincorporated associations determine the rules for their own administration. Not all such rules are contractual in nature.[42]
[42]Cameron v Hogan (1934) 51 CLR 358, 373.
In Kibby,[43] it was noted that the English approach to determining whether an unincorporated association exists might differ somewhat from that taken in this country. Reference was made to Conservative & Unionist Central Office v Burrell,[44] a case involving taxation legislation. There, Vinelott J dealt with a submission that there were six characteristics which were either essential, or normal, indicia of an unincorporated association. These were:
[43][1999] 1 VR 861.
[44][1980] 3 All ER 42.
(i) there must be members of the association;
(ii) there must be a contract binding the members inter se;
(iii)there will normally be some constitutional arrangement for meetings of members and for the appointment of committees and officers;
(iv) a member will normally be free to join or leave the association at will;
(v)the association will normally continue in existence independently of any change that may occur in the composition of the association;
(vi)there must as a matter of history have been a moment in time when a number of persons combined or banded together to form the association.
His Lordship considered (i), (ii) and (vi) to be essential characteristics of such a body, but not (iii), (iv) and (v).[45]
[45]Cf City of Gosnells v Roberts (1994) 12 WAR 437.
In Kibby,[46] Mandie J analysed a series of judicial pronouncements as to the meaning of the term ‘unincorporated association’. His Honour also referred to a number of dictionary definitions of that term. He observed:
In the light of the judicial statements to which I have referred and the ordinary meaning of the words contained in the said definition, I consider that the essence of an “association” may be described as some form of combination of persons (with a common interest or purpose) with a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method for the identification of its members.
I do not think that a name or title, or the existence of a written constitution or rules governing the combination, or the existence of some form of contract between the members, is an essential characteristic, but clearly the existence of one or more of these would go a long way towards satisfying the need for some degree of organisation and continuity and for the satisfactory identification of members. Likewise, the existence of office-bearers, a committee and a bank account are relevant to a degree of organisation. The absence of all of these features makes it unlikely, but not impossible, that an association has been formed or is being carried on.[47]
[46][1999] 1 VR 861.
[47]Ibid 872. Emphasis added.
The applicants do not challenge the applicability of the Kibby[48] indicia, but contend that the jury should have been told that the presence of all, or at least some, of these indicia was a necessary precondition to a finding that an ‘organisation’ had come into existence. His Honour’s error, so it was said, lay in allowing the jury to think that they could make such a finding without being satisfied that each of the matters identified in Kibby[49] – or at least a specified minimum number of them – was present.
[48][1999] 1 VR 861.
[49]Ibid.
Our attention was drawn to a number of authorities said to bear upon this issue. In Cometa,[50] the New Zealand Court of Appeal delivered a helpful judgment on the point. Arnold J said:
Unincorporated bodies range from loosely to highly organised groupings. At one end of the spectrum are groups of people who have come together in an ad hoc way for a particular short-term purpose. Examples are residents who are opposing a development in their neighbourhood or parents of school children who want to take up a particular concern with the school. At the other end of the spectrum are bodies which are long-lived, have officers, governance arrangements and employees just as corporate entities do, and operate and present themselves to the public as established, independent organisations. Bodies of this latter type are distinct from (and more than) the individuals who make up their membership – as a practical matter, they have independent existence and act as independent entities … This is presumably why s 29 of the Interpretation Act 1999 defines “person” to include an unincorporated body.[51]
[50](2007) 14 ELRNZ 20.
[51]Ibid 29–30.
His Honour added:
First, an unincorporated group must be capable of being described as a “body” of persons to fall within the definition in s 2 of the RMA [Resource Management Act 1991]. Individuals whose common interests have brought them together for a temporary purpose without any formal organisation may not fit that description. This seems to follow from Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] 2 NZLR 597. In that case this Court had said that an incorporated society whose registration had lapsed did not exist as a legal entity at the relevant time for the purposes of the RMA. Blanchard J said:
[127]That finding cannot be sustained. It overlooks the definition of “person” in s 2 of the Act:
personincludes the Crown, a corporation sole, and also a body of persons, whether corporate or unincorporate: ... .
Northcote Mainstreet was undoubtedly an unincorporated body of persons, during the interregnum between the lapsing of its incorporation and its restoration to the register under the Incorporated Societies Act 1908. The Court of Appeal said in Edwards v Legal Services Agency [at [28]] that a number of group of persons:
“... must be regarded as a body if there is such regulation of their internal affairs that there can be said to be a structure by which they can be recognised as a collective entity – the unincorporated equivalent of a body corporate.”
[128]Northcote Mainstreet continued to operate in accordance with its rules during the interregnum, for part of that time not appreciating that it had ceased to be registered. It acted throughout as a collective entity. There was not, and on the facts there could not be, any suggestion on the part of Discount Brands that through inactivity, the unincorporated body has “spontaneously” dissolved.
Tipping J said:
[170]In considering this issue I revert to the definition of person. It says that the word includes “a body of persons, whether corporate or unincorporated”. A corporate body is a legal entity in its own right distinct from its members. An unincorporate body of persons is not. An unincorporate body is rather like a partnership. It is recognised as having a separate existence, but in law it is no more than the aggregation of the individuals who are its members.
[171]Whether one views Northcote Mainstreet as a corporate or unincorporate body is not the immediate point. My point is that by making unincorporate bodies persons for [RMA] purposes, Parliament seems to have been looking more to substance than to legal existence or form. The concept of person is clearly designed to go beyond legal persons. It is necessary to be able to identify a body, but not a body which is legally recognised in its own right. The statutory policy evident from this expansive approach to persons suggests that a body of persons, as a body, ought to be able to rely on attributes pertaining to its individual members. That is an easier concept when the body is not a separate legal person than when it is. But in the present context the proposition must apply in both instances. The answer cannot, in this field, depend on issues akin to whether a corporate veil should be lifted.
These passages suggest that, in order to meet the definition, the unincorporated group must have some form of internal structure which enables it to take and implement decisions as a collective. If the group exists as a “collective entity” it can properly be viewed as a “body” of persons.
Second, and following on from the point just made, a group constituting a “body of persons” is likely to have a similar general structure to a company, in the sense that it will have a decision-making process, people who have governance responsibilities and such like (a pseudo-corporate structure). Consequently, as is said in Ormerod at 243:
When an unincorporated association is prosecuted, presumably the court must proceed by analogy to the law relating to corporations. Such associations have officials corresponding to the controlling officers of corporations and it is inconceivable that the association is liable for the act of any one of its members who has no part in the general management of its affairs.
In other words, given that the unincorporated group must be capable of being described as a “body of persons” in order to be subject to the RMA, the attribution of actions which breach the RMA to the body as opposed simply to particular individuals is feasible. Practical difficulties in relation to matters such as service and enforcement can be addressed by means of the pseudo-corporate structure that an organisation meeting the definition of “body of persons” will have. We consider that this is the appropriate approach in the absence of specific provisions dealing with unincorporated bodies in respect of offences under the RMA. [52]
[52]Ibid 31–33.
In the United States, there has been a good deal of learning on the meaning of terms like ‘organisation’. As would be expected, however, context is everything. Recently, in Boyle v United States,[53] the Supreme Court considered the meaning of the term ‘enterprise’ under the Racketeer Influenced and Corrupt Organizations Act, commonly know as RICO, which was defined to include any ‘group of individuals associated in fact’. Alito J delivered the opinion of the Court, which affirmed that, in order to establish the existence of an ‘enterprise’, the government had to prove that there was an ‘ongoing organisation’ with some sort of framework, formal or informal, for carrying out its objectives. The government also had to prove that various members and associates of the association functioned as a continuing unit to achieve a common purpose.
[53]129 S Ct 2237 (2009).
In that case, the trial judge had told the jury, over the petitioner’s objection, that they could ‘find an enterprise where an association of individuals, without structural hierarchy, forms solely for the purpose of carrying out a pattern of racketeering acts’. The trial judge had also said that ‘common sense suggests that the existence of an association-in-fact is oftentimes more readily proven by what it does, rather than by abstract analysis of its structure’.
In a submission that bears more than a passing similarity to that advanced before this Court, the petitioner had sought a direction that the government had to prove more than this, namely, that the enterprise had ‘an ongoing organisation, a core membership that functioned as a continuing unit, and an ascertainable structural hierarchy distinct from the charged predicate acts’. The trial judge had declined to give that direction. The Supreme Court rejected the petitioner’s submission and affirmed the conviction. It thereby upheld the broader and more flexible meaning given to the term ‘enterprise’ in that case.
Conclusion
Returning to the contention before us that his Honour misdirected the jury as to the term ‘organisation’, the first point to note is that legal terms can be explained in various ways. This can be done prescriptively, using the language of definition that may be highly specific, exhaustive, and self-contained. It can also be done more broadly by using the language of description, with various indicia or signposts provided to assist in understanding the meaning of the term in question.
The use of the term ‘unincorporated body’, in contradistinction to the term ‘body corporate’, in the definition of ‘organisation’ under s 100.1 of the Code invites attention to the distinction between companies and unincorporated associations so far as the criminal law is concerned. In that regard, at common law, an unincorporated body could not, and still cannot, be the subject of the criminal law.[54] That is not the position in relation to a body corporate, which can be directly liable for the commission of a criminal offence actually perpetrated by a ‘directing mind and will’.[55] Rules of attribution have been developed in order to determine whether the conduct, knowledge, or mental state of an individual employee or agent should be attributed to a corporation.[56] There are, of course, many offences that, by their very nature, cannot be committed by companies, for example, rape.[57]
[54]Royal Australian Nursing Federation (Tasmanian Branch) v Fawdry (1986) 12 FCR 113.
[55]Tesco Supermarkets Ltd v Nattrass [1972] AC 153; Hamilton v Whitehead (1988) 166 CLR 121; and Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500.
[56]Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563.
[57]Whether or not a company can be convicted of manslaughter, or of negligently causing serious injury, was the subject of consideration in Director of Public Prosecutions Reference No 1 of 1996 (1998) 3 VR 352.
Although unincorporated bodies are not themselves formed under the Corporations Act 2001 (Cth), their existence is recognised within some of its provisions. Those sections of the Act which refer to a ‘body’ (as distinct from a ‘body corporate’) can have that effect. Section 9 of the Act defines ‘body’ as meaning a ‘body corporate or an unincorporated body’. That is precisely the same language as appears in s 100.1 of the Code.
As we have said, the trial judge in the present case sought to assist the jury by providing them with indicia to be used to determine whether the existence of an ‘organisation’ had been established. As Cometa[58] makes plain, there is no ‘bright line’ which will enable one to say, in any case, that there are sufficient characteristics of an organisation present to conclude that one exists. Nor is there any set of necessary conditions the absence of one of which would render the term ‘organisation’ inapplicable.
[58](2007) 14 ELRNZ 20.
In reality, there is a continuum along which, at a certain point, an amorphous group of individuals with shared aims and objects becomes an entity that can properly be described as an ‘organisation’. It is a question of fact and degree. In our view, his Honour was correct to express the test as he did, rather than adopting a rigid and exhaustive definition. We reject the contention that the jury were left without sufficient guidance on this issue.
An example will illustrate this point. A judge trying a case of murder would normally direct the jury that an intent to cause really serious injury was sufficient to constitute the mental state required for that offence.[59] The rest would be up to the jury. The fact that the judge did not go further, and spell out exhaustively and with
precision the difference between ‘really serious injury’ and merely ‘serious injury’ does not mean that the jury were left inadequately instructed.[60]
[59]See, for example, Baker v The Queen [2010] VSCA 226.
[60]The example set out in the text is perhaps reminiscent of the debate surrounding the meaning of the term ‘dishonestly’ in the various provisions of the Theft Act 1968 (UK), that have been adopted in Victoria. See generally for the position in England, Brutus v Cozens [1973] AC 854; R v Feely [1973] QB 530; R v Gilks [1972] 3 All ER 280; Boggeln v Williams [1978] 2 All ER 1061; and R v Ghosh [1982] QB 1053. For the Victorian position see R v Salvo [1980] VR 401; R v Brow [1981] VR 783; and R v Bonollo [1981] VR 633. Cf Peters v The Queen (1998) 192 CLR 493 where the High Court favoured the English approach to ‘dishonesty’ in the context of the offence of conspiracy to defraud.
The jury in the present case were by no means left ‘at large’ to determine whether the Crown had established the existence of an ‘organisation’. They were given very considerable assistance in resolving that question. Whether or not such a body has come into existence must, as we have said, inevitably involve questions of fact and degree. There is no point at which it can be said, unequivocally and objectively, that a group of individuals with shared aims has transformed itself into an ‘organisation’. Each case must be considered in the light of its own particular facts, and every case will require individual attention to be given to the relevant characteristics. The Kibby[61] indicia were signposts to be considered in what was, in the end, an evaluative exercise.
[61][1999] 1 VR 861.
[382]Conversations 215.
[383]Conversations 294 and 295 (‘the chilling toll of Allah sniper’).
[384]For example, see conversation 222.
[385]For example, see conversation 197.
[386]In conversation 90, Sayadi told Benbrika, ‘Sheikh, he wants to ask you a question’ and, when Benbrika suggested that it not be asked then and there, added ‘[h]e considers it urgent’. Sayadi plainly knew the nature of Merhi’s question (about the nature and timing of the proposed terrorist act, as posed by Merhi in conversation 91). It was suggested that the conversation with Merhi proceed ‘outside’. Later (conversation 91), Sayadi and others can be heard moving away and leaving Benbrika and Merhi alone. In conversation 249 (in Sayadi’s presence), Benbrika says, ‘when we find ... that that’s it, we’re gonna do it really then it’s time to do it’. Benbrika then repeats his earlier advice to Merhi that, ‘the biggest problem is the money’ and that ‘the brothers are watched’.
[387]Conversation 128. In a discussion with Joud afterwards (conversation 129) Sayadi said that Joud should have kept quiet and left it to him, ‘I know how he is’ (referring to Bassam Raad). See also conversations 238, 304, 307, 309 and 396.
[388]For example, see conversations 140 and 301.
[389]For example, see conversations 191, 197 and 249. The specialist skills and responsibilities of which Sayadi urged Benbrika to make use of included topography (conversation 191), electronics (conversation 191), cars (conversation 197) and ‘the collection of the goods’ (conversation 197; cf conversation 249); each of which is consistent with the terrorist nature of the organisation. Referring to the Sydney brothers, Sayadi also recommends that Joud be ‘the messenger between them and here because the shabab over there trust him’ (conversation 249).
[390]For example, see conversation 197.
[391]For example, see conversation 126.
[392]For example, see conversations 126, 293, 309 and 330.
[393]For example, see conversations 126, 197, 222, 311 and 379.
[394]For example, see conversations 126 and 249.
[395]For example, see conversations 222, 276, 278 and 381. Sayadi accepted and supported Benbrika’s authority over significant expenditure from the sandooq: for example, conversations 197, 222 and 223.
[396]For example, see conversations 11 (moving stolen car), 17, 18, 132, 190, 222 (payment of fine for the stolen car), 231, 236 (insurance fraud), 238, 242, 309, 311 and 330. Such evidence tends to show that he too accepted Benbrika’s doctrine that the blood and wealth of the kuffar were lawful targets. His acceptance of the doctrine – and Benbrika’s authority – is also implicit in the discussion with Bassam Raad in conversations 128 (‘Deception in war is halal’), 140, 191 (in which Joud refers to the fatwa about ‘you know, for the things, and their blood and whatever’) and 301.
Sayadi’s understanding of the nature of the organisation and its purposes was further supported by evidence of conversations in which he participated about the rewards ’when you do something’,[397] his hatred of the kuffar for what they are doing to the Muslims,[398] his belief that the true meaning of jihad was fighting the kuffar,[399] and his references to the jema’ah as a terrorist organisation.[400]
[397]Conversation 374: Benbrika said that a Muslim fights without fear because ‘[h]e is seeking paradise and reward’; Sayadi agreed with Ahmed Raad’s summary that the result is either ‘victory or martyrdom in Allah’s cause’.
[398]Conversation 344.
[399]Conversation 432. Sayadi argued that if the kuffar use Muslims to fight, it is ‘better to take a few out’.
[400]See conversations 340 (‘Al Qaeda comes to Mount Thomas’) and 357 (‘Give it any name. A1 Terrorist’). These references, although jocular, are revealing. Compare with conversation 249, in which Sayadi says he has thought about why ‘associations before us with the same thinking … How can such associations break up?’.
26. SENTENCE APPEALS
Summary
Four factors in particular have affected the consideration of the sentence appeals, as follows:
1.The quashing of the possession convictions against Benbrika and Joud meant that each fell to be re-sentenced whether or not any other ground of appeal succeeded.
2.Contrary to the decision of the trial judge, we have concluded that the history and nature of the terrorist organisation is relevant to the objective seriousness and moral culpability of an offence of being a member of the organisation. Having regard to that factor, and to the maximum of ten years fixed by Parliament, we have concluded that the sentences on the membership counts were excessive.
3.In some instances, the offences overlapped. That is, some of the conduct relied on to support one count also supported another count against the same person. Adjustment of sentences was necessary to ensure that the offender was not doubly punished for the same conduct. In the case of Benbrika, the overlapping offences were those of being a member, and being the director, of the organisation. In the case of Joud and A. Raad, the overlapping offences were those of being a member of, providing resources to, and attempting to provide funds to, the organisation. (The ‘resources’ offence was committed by each man’s having provided his own services to the organisation as part of
the leadership group.) In the case of Sayadi, the overlapping offences were the membership and ‘resources’ offences.
4.Appropriate relativity of sentencing between co-offenders is a fundamental aspect of equality before the law. Once it became necessary to re-sentence Benbrika and Joud, these considerations of equal treatment necessitated adjustment of the sentences imposed on co-offenders for the same offences.
26.1 Abdul Nacer Benbrika
As noted at the outset, Benbrika was sentenced as follows:
Count Offence Maximum penalty Sentence imposed Commencement date 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 7y 3 February 2009 2 Intentionally directing the activities of a terrorist organisation, knowing that it was a terrorist organisation (s 102.2(1)). 25y 15y 3 February 2009 12 Possession of a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4(1)). 15y 5y 3 February 2009 Total effective sentence: 15y
Non parole period: 12y
For the reasons earlier given, the conviction on count 12 must be quashed. The sentencing discretion is thus re-opened. In exercising the discretion afresh, it is appropriate to take into account the submissions which were advanced in support of the application for leave to appeal against sentence. They were as follows:
1) the trial judge was in error in sentencing Benbrika on the basis that the history of the organisation was irrelevant to the objective seriousness of the offence of being a member of the organisation;
2) the trial judge erred by failing to give sufficient weight to the very onerous conditions under which Benbrika was held in custody awaiting his trial, and to Benbrika’s mental condition;
3) the trial judge doubly punished Benbrika by imposing as large individual sentences as his Honour did on counts 1 and 2;
4) the trial judge erred in setting a non-parole period of more than 75 per cent of the total effective sentence, given that Benbrika had no prior convictions and is middle aged; and
5) the individual sentences and non-parole period are manifestly excessive.
History of the organisation
As to the significance of the history of the organisation, the trial judge said that:
There is no reason why the history of an organisation should determine the seriousness of the offence of joining it. The offence is committed by joining an organisation which has the characteristics of a terrorist organisation set out in the statute. It is an element of the offence that the member knows that the organisation is a terrorist organisation. Once that element is proved it is the level of risk to the community created by the existence of the organisation which determines the objective seriousness of belonging to it, not whether it is or is not a declared organisation.[401]
With respect, we do not entirely agree. In our view, the history of an organisation is relevant to both the objective seriousness of an offence of being a member of the organisation and the moral culpability of the offender.
[401]R v Benbrika (2009) 222 FLR 433, 458.
So far as objective seriousness is concerned, the history of the organisation is relevant because it informs the nature of the organisation. The definitions of ‘terrorist organisation’ and ‘terrorist act’ are extraordinarily broad. Therefore, on the one hand, a ‘terrorist organisation’ may include anything from a rag-tag collection of malcontents whose commitment to terror never advances further than a conception that one day, some time, they will undertake a ‘terrorist act’ of as yet undetermined nature and scope. On the other hand, it may include a ‘terrorist organisation’, like Al Qaeda or Jema’ah Islamiah, with a proven record of committing the worst terrorist acts imaginable and, presumably, with more of the same in constant planning and preparation. Axiomatically, the activities of the former class of organisation are less likely to result in the commission of a terrorist act than the latter. Thus, other things being equal, the objective seriousness of an offence of joining the former kind of organisation is likely to be eclipsed by the objective gravity of subscribing to the latter.
So far as moral culpability is concerned, the history of the organisation is relevant because it may say something about the way in which prospective members are attracted to the organisation and, therefore, about their state of mind. For example, with an organisation of the former kind, it is possible that an offender may join the organisation in a state of uncertainty or confusion. They may thereafter have been seduced by a process of indoctrination to embrace the terrorist philosophy and objectives of the organisation. With an organisation of the latter variety, however, logic and common sense imply the probability that the offender will be committed to the terrorist philosophy and objectives of the organisation before being admitted to its membership, and so they go into it with their eyes wide open. Without wishing to be prescriptive about it, we think the difference provides a basis to say that an offender of the former kind is less morally culpable than the latter.
We do not suggest that the criminal culpability involved in the membership of a terrorist organisation is ever to be regarded as less than very serious, even where the activities of the organisation go no further than acts preparatory to the commission of a terrorist act.[402] Nor do we overlook the vital importance of denunciation and general deterrence in sentencing offenders for offences of this kind. Nevertheless, Parliament has made the offence punishable by a maximum penalty of ten years’ imprisonment, which implies that sentences of close to ten years are reserved for the worst kinds of cases. From that, one may infer that it was intended there be scope for the recognition of a range of objective seriousness and moral culpability. It would be wrong in principle to ignore the range of penalty which that entails.
[402]Lodhi No 2 (2007) 179 A Crim R 470, 531.
Conditions under which Benbrika was held in custody pending trial
There is nothing in the point about the conditions in which Benbrika was held in custody. The trial judge dealt with the nature and effect of those conditions in his ruling given on 20 March 2008.[403] His Honour also declared in his sentencing remarks that he proposed to take them into account and to consider the hardship to which the Benbrika would be subject while serving his sentence.[404] The length of the sentence which his Honour imposed does not suggest that he failed to give adequate weight to either consideration.
[403]R v Benbrika (Ruling No 20) (2008) 18 VR 410.
[404]R v Benbrika (2009) 222 FLR 433, 444–5.
Double punishment because of the sentences imposed on counts 1 and 2
We see nothing of substance in the contention that the trial judge doubly punished the applicant by imposing the sentences which his Honour did on counts 1 and 2. Perhaps in purely theoretical terms, it was not sufficient to make the sentences on counts 1 and 2 wholly concurrent to allow for the fact, as his Honour put it, that ‘the elements of [count 1] are practically, if not legally, wholly subsumed within [count 2]’.[405] In point of principle, it could be argued that it was also necessary to reduce the amount of the individual sentence imposed on count 1 in order to reflect the extent to which its criminality was subsumed in count 2. In reality, it would not have made the slightest difference to proceed in this way as the trial judge ordered that the two sentences be served wholly concurrently. Furthermore, because of the requirements of parity, there was good reason for his Honour not to reduce the sentence imposed on count 1 below the level which properly reflected the nature and gravity of the offence standing alone.
[405]Ibid 449.
Excessive non-parole period
We reject this point. The trial judge’s sentencing remarks make clear his Honour’s concern as to the applicant’s obdurate lack of remorse and contrition, and the zealotry of his continuing devotion to the cause of violent jihad.[406] As his Honour rightly said, with such a prisoner the object of community protection is reason in itself for a longer than normal non-parole period. Indeed, in some cases it will be reason not to set any non-parole period.
[406]Ibid 448.
Manifest excess
That said, we are persuaded that the sentence of seven years’ imprisonment imposed on Benbrika on the count of being a member of a terrorist organisation was manifestly excessive. For the reasons earlier set out, we consider that a sentence of that order (representing 70 per cent of the maximum penalty of ten years’ imprisonment) should be reserved for cases close to the most serious instances of the offence. Despite the gravity of Benbrika’s offending, this was not such a case. Certainly, he was a member of the organisation for the whole of its existence, and the objective seriousness of his membership and his moral culpability in relation to it were greater than for any other offender. However, in relative terms, this organisation was towards the lower end of the scale of seriousness. Therefore, the
sentence to be imposed on Benbrika for being a member of it should accord to that relativity.
So to say is not to overlook that he was the founder and principal of the organisation. It is also not to overlook that his actions were more far reaching than in the case of any other offender.
Those matters, however, go to the sentence to be imposed for the offence of directing the organisation. To avoid double punishment, Benbrika’s leadership of the organisation must be excluded from consideration when sentencing for the offence of being a member of the organisation. Approaching the matter in that way, we conclude that a sentence of five years’ imprisonment (representing 50 per cent of the maximum penalty) should be imposed.
We take the same view as the trial judge, however, as to the sentence to be imposed on the count of directing the activities of a terrorist organisation. On any rational analysis, the objective seriousness of Benbrika’s actions in convincing impressionable prospective members of the organisation to the way of violent jihad, and his moral culpability in fomenting the misconceptions and hatred which sustained their interest in the organisation and its activities, were at the high end of the scale of seriousness.
Ironically, despite the vehemence of Benbrika’s commitment to violent jihad, the evidence suggests that he was a procrastinator. Fortunately for all concerned, that meant that the organisation never got to the point of committing a terrorist act before it was shut down. However, as the evidence also showed, it would surely have done so had it not been shut down. Benbrika was pivotal as to when and what that act would be, and it is on that basis that he stood to be sentenced. For his acts in developing and sustaining the organisational capability to commit a terrorist act when he determined, the sentence of 15 years’ imprisonment was appropriate.
All individual sentences are to commence on 3 February 2009. This makes a total effective sentence of 15 years’ imprisonment.
We also see nothing questionable about the non-parole period of 12 years. In the face of Benbrika’s intractable adherence to the cause of violent jihad, and the consequent need for denunciation, general deterrence, specific deterrence and community protection, a non-parole period of that order was unavoidable.
26.2 Aimen Joud
As noted earlier, Aimen Joud was sentenced as follows:
Count Offence Maximum penalty Sentence imposed Commencement date 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 6y 6m 3 February 2009 3 Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)). 25y 8y 3 February 2009 6 Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)). 25y 8y 3 February 2011 7 Possession of a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4(1)). 15y 5y 3 February 2009
Count Offence Maximum penalty Sentence imposed Commencement date 8 Possession of a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4(1)). 15y 5y 3 February 2009 Total effective sentence: 10y
Non-parole period: 7y 6m
For the reasons earlier given, the convictions sustained by Joud on counts 7 and 8 must be quashed. Thus the sentencing discretion is re-opened.
On count 1, we think that the sentence imposed by the trial judge was excessive. The nature and gravity of Joud’s membership of the organisation were significantly less than Benbrika’s, as was his moral culpability. Joud was very young and, although a member of the consultative committee of the organisation, it is apparent that he was in thrall to Benbrika. We propose to re-sentence him on count 1 to four years and six months’ imprisonment.
As to count 6 we also take a different view from the trial judge. The objective gravity of Joud’s offence of attempting to provide funds was, in our view, more towards the lower end of the range than a sentence of eight years implies. We think that five years’ imprisonment is sufficient to reflect the nature and gravity of that offending. It also takes account of the that there is an overlap between the criminality involved in count 1 and that subsumed by count 6. The sentences imposed on counts 1 and 6 should be served concurrently.
Contrastingly, with respect to count 3, we see no reason to disagree with the sentence of eight years’ imprisonment imposed by the trial judge. Notwithstanding that Joud was particularly young – between 19 and 21 at the time of offending – and, as we have observed, in thrall to Benbrika, there was no evidence at the time of sentencing (or on appeal to this Court) of any contrition or remorse on Joud’s part. Even more concerning is that there was no evidence that Joud had abandoned his commitment to violent jihad. To the contrary, at the time of sentencing, there was positive evidence (in the form of comments made by Joud to psychiatrist, Dr Danny Sullivan) that Joud remained committed to the ideal of being a terrorist.
Counsel for Joud submitted that the trial judge had taken the remarks made to Dr Sullivan out of context and used them unfairly against Joud. He also submitted that his Honour had failed to take into account evidence given at trial that Joud’s commitment to the organisation had waned over the term of his membership. It was said that his Honour failed to accept the interconnection between Joud’s youth and his offending, and that he failed to allow for the harshness of the conditions in which Joud was kept in custody awaiting trial and the effect of those conditions on him.
We reject those submissions. We do not accept that the trial judge took the remarks to Dr Sullivan out of context. If anything, we take the view that his Honour’s treatment of them may have been overly fair to Joud. Nor do we accept that it was established that Joud’s interest in the organisation waned over time. As will be apparent from our analysis of Joud’s application for leave to appeal against conviction, the evidence showed that Joud remained active and committed to the organisation until his arrest.
So far as Joud’s youth and conditions of detention are concerned, the trial judge dealt at length with both points, balancing them, as he was bound to do, against the requirements of specific deterrence and community protection.[407] We agree with his Honour that there was little which the Court could take into account in Joud’s favour on the issues of rehabilitation, specific deterrence and the protection of the public.[408] It could only be hoped that the length of sentence would be sufficient in itself to disabuse Joud of his misconceptions and thereby achieve the aims of rehabilitation and protection of the public which imprisonment is intended to accomplish.
[407]Ibid 450 and 453.
[408]Ibid 454.
All individual sentences are to commence on 3 February 2009. Therefore, the total effective sentence imposed on Joud will thus be reduced from ten years’ imprisonment to eight years. We shall fix a new non parole period of six years (the latter being a slightly greater than normal proportion of the total effective sentence because of Joud’s poor prospects of rehabilitation).
26.3 Fadl Sayadi
It should be noted that Fadl Sayadi did not lodge an application for leave to appeal against sentence.
Sayadi was sentenced as follows:
Count Offence Maximum penalty Sentence imposed Commencement date 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 6y 6m 3 February 2009 5 Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)). 25y 8y 3 February 2009 Total effective sentence: 8y
Non-parole period: 6y
There was no evidence before the trial judge (and none was tendered to this Court) that Sayadi had altered his views on violent jihad. His Honour concluded, therefore, that the sentence to be imposed needed to be greater than would otherwise be the case in order to provide adequate specific deterrence and protection of the public. We do not disagree. However, given the need to re-sentence Benbrika and Joud, parity dictates that Sayadi’s sentence be reconsidered.
Although Sayadi was one of the ‘elders’ of the organisation, his involvement was still less than Benbrika’s or Joud’s. Thus, to achieve parity with the sentences imposed on them, we consider that Sayadi should be re-sentenced on each of the counts of which he was convicted.
On count 1, the count of being a member of the organisation, we propose to re-sentence him to four years and six months’ imprisonment. On count 5, the count of providing resources to the organisation, we propose to re-sentence him to seven years’ imprisonment. Both sentences are to commence on 3 February 2009. That will result in a total effective sentence of seven years’ imprisonment. We shall fix a non-parole period of five years and three months.
26.4 Abdullah Merhi
Abdullah Merhi was convicted of one count of being a member of a terrorist organisation pursuant to s 102.3(1). He was sentenced to six years’ imprisonment with a non-parole period of four years and six months. His role in the organisation was less than Sayadi’s, and he was younger than Sayadi. Consequently, we assess the objective seriousness and moral culpability of his offending as less than Sayadi’s.
Counsel for Merhi submitted that the trial judge erred in failing to take into account the history of the organisation. We have dealt with that point already in relation to Benbrika. We agree that the sentence imposed on Merhi should be reduced to some extent to reflect the fact that the organisation did not have a history of actually carrying out terrorist acts.
Counsel also argued that the trial judge erred in failing to take into account what he described as the ‘brief period’ of Merhi’s membership of the organisation, and in finding that Merhi had not renounced violent jihad.
We do not think that there is anything in either of those points. We dealt with the former when considering Merhi’s application for leave to appeal against conviction. It rises no higher than the submission put, and rejected, at trial that his
Honour should have left to the jury the possibility that Merhi withdrew from the organisation in mid 2005.
As to the latter, the trial judge dealt at length with the submission put below that Merhi should be found to have renounced violent jihad. He rejected it for a variety of reasons[409] in a manner which we think to be wholly persuasive.
[409]Ibid 459–61.
Finally, counsel contended that, for whatever reason, the trial judge erred in failing to pay sufficient heed to what counsel contended were Merhi’s ‘excellent prospects’ of rehabilitation. That point has no merit either. As his Honour said, the contention that Merhi had good prospects of rehabilitation was predicated on the submission, which his Honour rejected, that Merhi had renounced violent jihad.[410]
[410]Ibid 461.
It remains to re-sentence Merhi in order to achieve parity. We propose to re-sentence him to a four years’ imprisonment, that sentence to commence on 3 February 2009. We shall fix a non-parole period of three years. We note that the latter is a longer than usual non-parole period because of the trial judge’s finding that there was no evidence of Merhi having renounced violent jihad, and because of the resultant need for greater specific deterrence and protection of the public.
26.5 Ahmed Raad
Ahmed Raad was sentenced as follows:
Count Offence Maximum penalty Sentence imposed Commencement date 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 6y 6m 3 February 2009
Count Offence Maximum penalty Sentence imposed Commencement date 4 Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)). 25y 8y 3 February 2009 6 Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)). 25y 8y 3 February 2011 Total effective sentence: 10y
Non-parole period: 7y 6m
Ahmed Raad was an important member of the organisation. He was its treasurer and, relatively speaking, one of its more mature members. He was 23 at the time of offending, and 25 at the time of sentencing.
At the time of sentencing, the trial judge was not persuaded that Ahmed Raad had renounced violent jihad. Consequently, his Honour regarded specific deterrence and protection of the public, as well as general deterrence, as being foremost among sentencing considerations. We agree with that conclusion.
Counsel for Ahmed Raad argued that the trial judge failed to give any, or sufficient, weight to his psychological problems and that his Honour was in error in treating the need to avoid disparity as a sufficient reason not to do so. It was also submitted that his Honour erred in failing to give sufficient weight to the arduous conditions under which the sentence would be served. Finally, it was submitted that the individual sentences, the total effective sentence and the non-parole period were all manifestly excessive, having regard to Ahmed Raad’s age, absence of prior convictions, stable family life and support, solid work history and the emotional difficulties to which he had been subject as a result of his brother’s death in 2003.
Those submissions are not persuasive. The trial judge dealt with Ahmed Raad’s psychological difficulties and made allowance for the harsh conditions of his incarceration.[411] As his Honour observed, however, each of the other applicants was subject to similar conditions and some, if not all, of them were likely to suffer from similar psychological difficulties as a result of those conditions.[412] In those circumstances, his Honour reasoned, it would create an injustice if Ahmed Raad received not only the benefit of the allowance for the harshness of conditions allowed in favour of each of the other applicants, but also a further allowance because of his own psychological reaction to those conditions. We so no error in that.
[411]Ibid 462–3 and 465.
[412]Ibid 465–6.
The trial judge took into account as mitigating considerations all of Ahmed Raad’s personal circumstances and antecedents, and the hardship which his incarceration was likely to impose on his family. However, as his Honour said, he was unable to find that Ahmed Raad had renounced violent jihad. Consequently, his Honour regarded himself as bound to impose a sentence which would deter others from the path of violent jihad, which would specifically deter Ahmed Raad from engaging in that sort of activity when he was released from gaol, to denounce terrorism in all its forms, to punish Ahmed Raad for the major role which he played in the organisation and, above all, to protect the public. We entirely agree.
It is necessary to make some adjustments to Ahmed Raad’s sentence, however, on the basis of parity.
Relatively speaking, we equate the objective seriousness and moral culpability of count 1 (his offence of being a member of a terrorist organisation) to the objective seriousness and moral culpability of Joud on that same count. Parity thus dictates that we re-sentence Ahmed Raad on count 1 to four years and six months’ imprisonment.
As to count 4 (intentionally providing resources), we share the trial judge’s view that it was necessary to impose a sentence of eight years’ imprisonment and, since there is no evidence of any change in circumstances since Ahmed Raad was sentenced, we propose to re-sentence him on count 4 to eight years’ imprisonment.
As to count 6, however, we take the view that the objective gravity of the offending (attempting to make funds available) was more towards the lower end of the range than a sentence of eight years’ imprisonment implies. As with Joud, we consider that a sentence of five years’ imprisonment is sufficient to reflect the nature and gravity of the offence and the fact that there is an overlap between the criminality involved in count 1 and that subsumed by count 6. The sentences on counts 1 and 6 should be served concurrently.
All individual sentences are to commence on 3 February 2009. In the result, the total effective sentence imposed on Ahmed Raad will be reduced from ten years’ imprisonment to eight years. As with Joud, we shall set a new non-parole period of six years.
26.6 Ezzit Raad
Ezzit Raad was sentenced as follows:
Count Offence Maximum penalty Sentence imposed Commencement date 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 6y 3 February 2009 6 Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)). 25y 6y 3 August 2010 Total effective sentence: 7y 6m
Non-parole period: 5y 9m
Counsel for Ezzit Raad advanced four propositions in support of his application for leave to appeal against that sentence. The first was that the trial judge had erred in failing to take into account that the organisation had no history of acts of terrorism. We have dealt with that in relation to Benbrika and we accept that the history of the organisation does warrant some adjustment of the sentence imposed on count 1.
Secondly, that the trial judge had given insufficient weight to the arduous nature of the conditions in which Ezzit Raad had been kept in custody awaiting trial, and to the possible conditions under which he would serve his sentence. We have already dealt with similar contentions in relation to other applicants. For the reasons given there, we reject this submission.
Thirdly, that the individual sentences, the total effective sentence and the non-parole period were all manifestly excessive. Subject to the one qualification concerning the sentence imposed on count 1, to which we have already referred, we reject that contention.
The trial judge found that Ezzit Raad’s participation in the activities of the organisation, and his involvement in the attempt to provide funds to the organisation, were less than Ahmed Raad’s. In order to maintain appropriate relativity of sentences, we propose to reduce the sentence imposed on Ezzit Raad on count 1 to four years’ imprisonment, and the sentence imposed on count 6 to four years’ imprisonment. The sentence imposed on count 1 is to commence on 3 February 2009. The sentence imposed on count 6 is to commence on 3 February 2011. That makes a total effective sentence of six years’ imprisonment. We shall fix a non-parole period of four years and six months.
26.7 Amer Haddara
Amer Haddara was convicted of being a member of a terrorist organisation pursuant to s 102.3(1). He was sentenced to six years’ imprisonment with a non-parole period of four years and six months.
The trial judge found that Haddara did not become a member of the organisation until 17 September 2005. Therefore, he was a member of the organisation for only a few weeks before being arrested. However, as with the other applicants, there was no evidence that Haddara had renounced violent jihad.
Counsel for Haddara advanced two grounds of appeal against sentence. The first, like other applicants, was that his Honour had erred in failing to take into account the past history and relatively shambolic nature of the organisation. The second, that the sentence and the non-parole period were manifestly excessive.
As already indicated, we think that there is some substance in the first point, and we propose to reduce the sentence accordingly. In order to maintain appropriate relativity with the sentences imposed on other applicants, we have concluded that Haddara should be re-sentenced to four years’ imprisonment. We shall fix a non-parole period of three years.
Summary of re- sentencing
Count Offence Maximum penalty Sentence imposed Commencement date Benbrika 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 5y 3 February 2009 2 Intentionally directing the activities of a terrorist organisation, knowing that it was a terrorist organisation (s 102.2(1)). 25y 15y 3 February 2009 Total effective sentence: 15y
Non parole period: 12y
Joud 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 4y 6m 3 February 2009 3 Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)). 25y 8y 3 February 2009 6 Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)). 25y 5y 3 February 2009 Total effective sentence: 8y
Non-parole period: 6ySayadi 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 4y 6m 3 February 2009 5 Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)). 25y 7y 3 February 2009 Total effective sentence: 7y
Non-parole period: 5y 3mMerhi 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 4y 3 February 2009 Total effective sentence: 4y
Non-parole period: 3y
Ahmed Raad 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 4y 6m 3 February 2009 4 Intentionally providing resources to a terrorist organisation, knowing that it was a terrorist organisation (s 102.7(1)). 25y 8y 3 February 2009 6 Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)). 25y 5y 3 February 2009 Total effective sentence: 8y
Non-parole period: 6yEzzit Raad 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 4y 3 February 2009 6 Attempting intentionally to make funds available to a terrorist organisation, knowing that it was a terrorist organisation (ss 11.1(1) and 102.6(1)). 25y 4y 3 February 2011 Total effective sentence: 6y
Non-parole period: 4y 6mHaddara 1 Intentionally being a member of a terrorist organisation, knowing that it was a terrorist organisation (s 102.3(1)). 10y 4y 3 February 2009 Total effective sentence: 4y
Non-parole period: 3y
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