Benbrika v The Queen; Raad v The Queen; Joud v The Queen

[2011] HCATrans 160

[2011] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M155 of 2010

B e t w e e n -

NACER BENBRIKA

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M156 of 2010

B e t w e e n -

EZZIT RAAD

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M164 of 2010

B e t w e e n -

AIMEN JOUD

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

FRENCH CJ
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 JUNE 2011, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR P.F. TEHAN, QC:   If the Court pleases, I appear with my learned friend, MR C.B. BOYCE, for the applicant Benbrika.  (instructed by Doogue & O’Brien)

MR M.D. STANTON:   May it please the Court, I appear for the applicant Raad.  (instructed by Slades and Parsons Solicitors)

MR LC. CARTER:   If the Court pleases, I appear for the applicant Joud.  (instructed by Lethbridges)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR D.J. LANE, for the respondent.  (instructed by Director of Public Prosecutions (Cth))

FRENCH CJ:   Yes, Mr Tehan.

MR TEHAN:   Your Honours, counsel for the applicants we have discussed this matter and it is proposed, your Honour, that I will present the arguments which will, as I apprehend it, probably be adopted by the other applicants’ counsel.  Could I take ‑ ‑ ‑

FRENCH CJ:   There is an extension of time, I think, required by one of the applicants - that is Joud.  Is that opposed?

MS ABRAHAM:   No, it is not.

FRENCH CJ:   Yes, you have the extension of time.

MR TEHAN:   Thank you, your Honour.  Could I take the Court immediately to the draft notice of appeal in volume 2 of application book 1 at page 1049 and indicate to the Court that in relation to ground 2.1 we propose to argue grounds (a) and (d).  We do not rely upon the other particulars pleaded in that ground.  We do of course rely upon grounds 2.2 and 2.3 of the draft notice.

Your Honours, the applicant Benbrika was convicted of intentionally being a member of a terrorist organisation - count 1.  He was also convicted of directing the activities of a terrorist organisation – count 2.  These offences are created by sections 102.3(1) and 102.2(1) of the Criminal Code.  The offences were alleged to have been committed between July 2004 and November 2005.  Section 102.1 of the Code defines a “terrorist organisation” as:

an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs) ‑ ‑ ‑

FRENCH CJ:   Our focus is entirely on fostering, is it not?

MR TEHAN:   It is, your Honour.  By the terms of the indictment, which appears at application book page 1, the organisation of which it was alleged the applicant was a director and a member was said to be a terrorist organisation in that:

it was an organisation directly or indirectly fostering or preparing the doing of a terrorist act.

The central issue upon the trial was whether or not there was such an organisation.  Therefore it was fundamental that the trial judge properly direct the jury upon the element of the offence of fostering.  It is an important element of the offence.  It is an unusual term, a novel term.  It is not employed in terrorism legislation in the United Kingdom, the United States or any other country.

CRENNAN J:   Well, you contended, did you not, before the trial judge that the Crown wished to have a direction which was too broad, and you urged the judge to give a narrower direction that the meaning of “fostering” was encouraging.

MR TEHAN:   Intentional encouragement or promotion.  We maintain ‑ ‑ ‑

CRENNAN J:   His Honour acceded to that.

MR TEHAN:   No, he did not accede to that at all, with respect, your Honour.  What he did was he left it to the jury.  I will come to that in a moment, your Honour, but, in our submission, what he did was he left it to the jury to decide what “fostering” meant.

KIEFEL J:   But his Honour said “fostering” can be regarded as synonymous with encouragement or something of that nature.

MR TEHAN:   Or something of that nature.

KIEFEL J:   Well, “something of its nature” directs attention to “encouragement”.  It is not left wide open and that is the difficulty I have with your submissions on this point.

MR TEHAN:   The direction which the judge gave is of course at application book 52 at line 26:

Fostering and preparing are ordinary English words which you will understand.  You don’t need any assistance from me. You might give them their ordinary English meanings.

At application book 66 at line 20:

As I have said there –

and his Honour was referring to a written direction –

“fostering” and “preparing” are ordinary English words.  Fostering can be synonymous with encouraging or something of that nature, and preparing means what it says, getting it ready or something of that nature.

In our submission, those directions were wholly inadequate; they failed to define ‑ ‑ ‑

CRENNAN J:   Did anyone make that complaint at trial?

MR TEHAN:   Yes, that complaint was made - throughout the course of the trial in December and then in the following June it was made.

KIEFEL J:   Could you point us to where the request for a redirection was made?

MR TEHAN:   The applicants maintained the position that was advanced by Mr Mullaly of counsel that the judge not define “fostering” by reference to it being an ordinary English word, that it be defined with precision and that it be defined in terms of intention and encouragement.

KIEFEL J:   But that is what his Honour did.  You say his Honour should have gone further?

MR TEHAN:   What his Honour failed to do was give any legal precision to it firstly.  That is the first point ‑ ‑ ‑

KIEFEL J:   But his Honour acceded to the request to define it as synonymous with “encouragement” which was supported by ‑ ‑ ‑

MR TEHAN:   The specific request was that it not be put to the jury as being as ordinary English word, that it be defined with precision and that the definition that should be given to the jury was one of intention and encouragement.  To answer your Honour’s question earlier, where is exception taken - at application book page 83, at line 14.  Mr Mullaly says:

Your Honour, I have found three matters that I wish to raise, I can put them in writing, some of them are merely formal to say, for instance, that the direction that you gave in respect of fostering ought to be the one that I submitted to you in writing.

HIS HONOUR:   You have made that point.

KIEFEL J:   Well, what was that?

CRENNAN J:   Well, where is that to be found in this application book?

MR TEHAN:   That is to be found in – there was, in the applicant’s supplementary materials delivered to the Court yesterday, and in that book you will see that the first document is a submission on behalf of Raad as to the meaning of “fostering”.  That document sets out the submissions which were adopted by learned counsel as to what directions the judges ‑ ‑ ‑

KIEFEL J:   Is this the submission that was made before his Honour gave the direction that it was to be regarded as synonymous with “encouragement”?

MR TEHAN:   Yes.

KIEFEL J:   All right, but after his Honour gave that direction, if that was considered insufficient, where is the request for a further redirection?

MR TEHAN:   The request is at page 83, at application book page ‑ ‑ ‑

KIEFEL J:   That is it.  It is just a reference back to what had already been made.

MR TEHAN:   Yes, it is a reference to what had been litigated earlier and maintained at page 20 of the supplementary submissions.  The submission was maintained in December of 2007.  These supplementary submissions deal with Mr Mullaly maintaining his submissions, and then at page 62 of the supplementary submissions one sees a Mr Taft at line 26 on 17 June indicating that the arguments advanced “are put on behalf of everybody”.

KIEFEL J:   Could you assist me with the written submissions put by counsel for Mr Raad, to which you have referred in the supplementary book, where is the direction that is sought to be made?  There is an argument about it not being the dictionary definition, but what is his Honour actually asked to say to the jury?

MR TEHAN:   The direction which is sought is at paragraph 32 at page 7 of the book.

KIEFEL J:   Which is the act of encouraging - it is paragraph 32.

MR TEHAN:   And paragraph 10.

KIEFEL J:   But paragraph 32, the critical part of it is dot point 3, which equates it with encouragement again.

MR TEHAN:   What was contended below is that the definition which should have been put to the jury was “intentional encouragement or promotion”.

KIEFEL J:   The only thing missing from his Honour’s direction was the word “intentional”.

MR TEHAN:   It should be confined to “intentional encouragement”.  What the judge did was to leave it to the jury to decide what “fostering” meant and the judge indeed put it to the jury that judicial assistance or direction was unnecessary.  What his Honour said did not amount to a binding legal direction at all.  He failed, in our submission, to bring home to the jury that before they could be satisfied of this element of the offence they would have to be satisfied that the organisation intentionally encouraged or promoted the doing of a terrorist act.  His Honour merely stated that “fostering” might be synonymous with “encouraging or something of that nature”.

CRENNAN J:   Can be synonymous.

MR TEHAN:   Can be synonymous with “encouraging” or something of that nature.  This was a critical element of the offence and it simply is not good enough to ‑ ‑ ‑

KIEFEL J:   But what do you say the jury might have misunderstood about the word “fostering” in this context?

MR TEHAN:   Well, as events turned out, the jury might well, because they had recourse to a dictionary.

KIEFEL J:   Well, that is a separate issue, but just on this direction, on the question of the need for a direction, what do you say about the ordinary meaning of “fostering” which they may have - another meaning that they may have given to it apart from “encouragement”?

MR TEHAN:   Support, being favourable to it.

KIEFEL J:   “Fostering” is a bit more emphatic than that, is it not?

MR TEHAN:   Yes, and that is exactly why it is an unusual term, it is a term of art, it needs to be defined with legal precision and not simply left up in the air.  The way in which the Court of Appeal dealt with the submission that we made below and we make here is at application book 878, line 10 where the court said:

The jury were told, in the clearest of terms, that term ‘fostering’ meant nothing more than ‘encouraging’.

With respect to the court, that is a fundamental error on the part of the court.  The jury were not told in clear terms that “fostering” meant nothing more than “encouraging”.  They were not told that.  The directions such as they were that the judge gave allowed for the jury to ascribe to “fostering” whatever they decided.

This error on the part of the Court of Appeal had two consequences.  The first consequence was that it allowed the Court to very easily dismiss our submissions which related to the use of the dictionary by the jury.  Whilst deliberating, the jury had access to a dictionary.  The forelady of the jury told the judge that the jury had the dictionary for a couple of weeks and that it had been solely used to look up the word “foster”.  That appears from the supplementary materials at page 38, line 18.

That circumstance led to an application for discharge of the jury which was refused.  The dictionary had defined “foster” as “promote growth of; encourage or harbour (feeling); (of circumstances) be favourable to”.  In his ruling, refusing the discharge of the jury, the judge said that having told the jury that the word “fostering” was an ordinary English word upon which they needed little or no assistance from the court, it was hardly surprising that they resorted to a standard English dictionary.

In the Court of Appeal it was submitted that the jury should have been disabused of that part of the dictionary definition which was to the effect that “fostering” meant “harbour (feeling); (of circumstances) be favourable to”.  On this point the Court said at application book 908, line 10:

However that may be, the important point for present purposes is that the jury’s recourse to the dictionary could not have led them to conclude that ‘fostering’ meant anything other than what the trial judge had told them that it meant.  It is improbable that, having had the dictionary removed from their possession, they would nonetheless have retained in their minds the broader (and irrelevant) meaning set out therein.  It is even more improbable that they would have then gone on to adopt that inapt meaning in preference to the simple and clear oral and written directions given to them by his Honour in his charge.

It is of note, of course, that the Court of Appeal accepted that that part of the dictionary definition of the word “foster”, or at least part of the definition of the word “foster” contained within the dictionary was inapt and irrelevant.  However, the basis for the court rejecting the argument that the jury might have had regard to this inapt and irrelevant part of the definition was by recourse, in our submission, to the erroneous premise that the trial judge had defined “fostering” in clear terms to mean no more than “encouraging”, and he had not, with respect, he simply had not.  He had given the jury no judicial assistance as to what it meant other than saying it may be synonymous with “encouraging” or “something of that nature”.  Now, that is not good enough.

KIEFEL J:   Can I just be clear about your submission on this?  Are you relying upon their resort to the dictionary meaning as showing that they may have applied an inapt meaning, or are you referring to it as supporting your proposition that they felt the need to resort to it?

MR TEHAN:   Both.  I mean they were invited.  As the judge himself said in his ruling, “Not unusual they went to the dictionary I told them it was an ordinary English word”.

KIEFEL J:   Which part of the meaning do you think the jury might have been attracted to?

MR TEHAN:   “Being favourable to”.  That is the real danger in this case that the jury well might have convicted ‑ ‑ ‑

FRENCH CJ:   What did the Court of Appeal say as to the correct construction of the word “fostering”?

MR TEHAN:   Well, they really did not much say much.  What they said was, in our submission, wrong, that the judge had defined “fostering” in clear terms to mean “encouragement”.  That is what they said.

FRENCH CJ:   Yes.  In other words they are saying “You got what you wanted” and you say “We did not”.

MR TEHAN:   Yes, exactly.

FRENCH CJ:   So at the premise of this has to be that the correct legal construction of the term “fostering” is confined, as you say, and you would say for the purposes of special leave it is at least a point of importance.

MR TEHAN:   Yes.

FRENCH CJ:   Then the question is whether there was a direction which left, as it were, wiggle room for the jury on that point.

MR TEHAN:   Yes.  Well, there was certainly wriggle room by the time they got the dictionary.

FRENCH CJ:   I am just focusing on the direction.

MR TEHAN:   Yes, I understand that, your Honour, and we agree with your Honour on that.  The jury, in our submission, should have been disabused of the broader irrelevant definition of “fostering” contained in the dictionary definition.  In our submission they should have been ‑ ‑ ‑

CRENNAN J:   Was a further direction sought by anybody after the dictionary episode?

MR TEHAN:   After the dictionary episode an application was made for discharge of the jury.

KIEFEL J:   But not on that basis; it was made on the basis that the jury was seen to be non‑compliant to directions.

MR TEHAN:   That is true.

FRENCH CJ:   But discharge having been refused, there was no application for a redirection.

MR TEHAN:   No, but that having been said, Mr Mullaly on behalf of all applicants had, at the outset and throughout the course of the trial as we have demonstrated, maintained his submission that “fostering” should be defined as being “intention, encouragement or promotion” and be confined to that definition.  That position had been maintained throughout.

KIEFEL J:   But is this suggestive of a forensic decision at this point, because if a redirection had been sought it would have reopened the whole question of the meaning of “fostering” for which the Crown was contending a much wider meaning.

MR TEHAN:   Yes.  But it could not have been, your Honour, because submissions had been made, the judge had directed ‑ ‑ ‑

KIEFEL J:   That is just a little hard to follow in the sense that if there was every a point at which a redirection could have been sought it would have been after the dictionary issue before the jury.

MR TEHAN:   Exception was taken to the charge, at application book page 83, and ruled against.

FRENCH CJ:   All right, well you say you are on the record.

MR TEHAN:   Yes, so we are indeed on the record, and the danger is that this could have created a real risk of a miscarriage of justice in this case because there was an abundance of evidence that the organisation was generally favourable to violent jihad and to terrorist activities in the name of Islam against allied forces overseas and the jury, in our submission, might well have convicted on the basis that support for or favour for terrorist activities was enough to constitute “fostering”.  The second consequence of the Court of Appeal’s erroneous statement that the judge had clearly defined “fostering” was that the court easily dismissed the argument that the term should be read down to make its operation compatible with the implied freedom of political communication.

FRENCH CJ:   Now, Mr Tehan, the red light is on but I think given the fact that you are covering territory which will not have to be repeated in the same detail by your colleagues at the Bar table, we are happy to let you go on in order to finish the points that you want to make, and also of course your own separate point about ‑ ‑ ‑

MR TEHAN:   Yes, thank you, I am on the separate point, your Honour.  Before the trial judge it was submitted that if the term “fostering” is given a wide definition, it has the potential to burden the freedom, and that appears in the supplementary materials filed by the applicants at page 9 and page 10; at page 45, line 28 through to page 46 at line 5 and then picked up again ‑ ‑ ‑

FRENCH CJ:   These were submissions in aid of a narrow construction.

MR TEHAN:   Yes.  Then at page 47, line 12 through to page 48 at page 18 these submissions were made.  Now, your Honours, in our submission, if “fostering” is given the meaning of “being supportive of, or being favourable towards” the doing of a terrorist act, then the freedom is burdened.  That is so because support for violent jihad, so, for example, Australia bring home its troops from Afghanistan, is a matter for legitimate public interest and political communication. 

The broad definition of “fostering” disproportionately burdens the freedom because such a definition is unnecessary to achieve the legitimate legislative objective of preventing terrorism.  That objective can properly be met by reading down the term “fostering” to mean “intentional encouragement” and by severing from the definition meanings such as “being in favour of”, “harbouring” and “support”.  The Court of Appeal dealt with this argument at application book page 877, line 41:

In the end, however, the constitutional argument was only faintly pressed.  That was a sensible decision.

We take issue with that.

FRENCH CJ:   Well, the Court of Appeal, as it were, sidestepped that because - you would disagree with this of course - but as the Court of Appeal characterised the direction, the construction was well within safe constitutional territory.

MR TEHAN:   Yes.  Your Honours, we have transcript from the Court of Appeal which we would suggest that the argument was not faintly pressed, but it may be ‑ ‑ ‑

FRENCH CJ:   I am not sure that matters much.

MR TEHAN:   No, it may be unnecessary to go there.

FRENCH CJ:   I mean, in the end, this argument simply feeds into the constructional question which has to be the premise of your primary proposition, does it not?

MR TEHAN:   Yes.  We return to where we started.  But the court rejected the constitutional argument because the court had wrongly concluded that “fostering” had been defined by the trial judge in the clearest of terms and that is fundamental to this application.  The judge did not define a critical element of the offence in the clearest of terms at all.  Indeed, he told the jury there was absolutely no need for judicial assistance or direction, and that is fundamental. 

In relation to ground 2.2 on sentence, the Court of Appeal determined error in the judge having sentenced on the basis that the history of the organisation was irrelevant.  The court found the history of the organisation was relevant and that on this score, the offending was towards the lower end of the scale of seriousness.  That led to a reduction in sentence on count 1.  It should have also led to a reduction in sentence on count 2, in our submission, and to a reduction in the overall total effective sentence and non‑parole period.

Your Honours, special leave should be granted in this case because there has been a miscarriage of justice because the trial judge failed to properly define an important element of the offence before the Court.  Additionally, this case raises for the first time an important question of principle, that is, what is the definition to be given to the term “directly or indirectly fostering a terrorist act” in the Criminal Code?  Related to this question is the issue of the extent to which the concept of “fostering” under the Criminal Code impacts upon the implied freedom of political communication, and for those reasons, in our submission, special leave should be granted.  May it please the Court.

FRENCH CJ:   Thank, Mr Tehan.  Mr Stanton.

MR STANTON:   May it please the Court, I respectfully adopt the submissions made by senior counsel for the applicant Benbrika and I have nothing more to add unless I can be of any further assistance to the Court.

FRENCH CJ:   Thank you.  Mr Carter.

MR CARTER:   Yes, may it please the Court.  Clearly the points are common.  There is no utility for me elaborating at this point.  I just point out that in respect to the applicant Joud’s draft notice at 1051 we rely upon grounds 2.1(a) and (d) which are in identical terms to Mr Tehan’s.  Our 2.2 is expressed slightly differently, but it does pick up explicitly that it is those two aspects of (a) and (d) that we say feed into 2. 

The only other distinction with this applicant is that he remains convicted on three counts; counts 1, 3, and 6, each of which required proof of fostering because each depended upon the existence of a terrorist organisation.  In my respectful submission, for the reasons advanced by My Tehan orally and writing in addition, this is an appropriate case for the grant of special leave.  If the Court pleases.

FRENCH CJ:   Thank you.  Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, my friend’s argument is twofold:  the definition per se and then the wider definition, if I could call it that, in relation to the dictionary.  In my submission, the judgment of the Court of Appeal is clearly correct and there is no reason to doubt their conclusion in relation to either aspect.  Can I deal firstly ‑ ‑ ‑

FRENCH CJ:   Did the case before the Court of Appeal proceed on the basis that the question was whether or not the trial judge had directed the jury in terms limiting “fostering” to “encouragement”, rather than the question of what was the correct construction of “fostering”?

MS ABRAHAM:   Yes.  There was an argument below and my friends contended below that it should have been “intentional encouraging” as they do now.  So it was confined to that aspect, yes, and obviously the argument about the dictionary, that there should have been a direction telling the jury not to take into account ‑ ‑ ‑

FRENCH CJ:   Are you contending for a wider construction?

MS ABRAHAM:   No.  In my submission the direction that was given is in fact the direction that my friends ask for, “encouraging”.  Just on that point, we filed a supplementary application book and can I take your Honours briefly to three pages - page 7 at line 23 your Honours can see:

just leave it as “encourage persons to do a terrorist act”.

There is talk of a dictionary.  Just pausing there, this argument occurred after the evidence and before the addresses.  Anything that had occurred prior to the trial which then was many, many months earlier, nothing was ever decided in relation to that because the judge wanted to hear what the evidence was obviously.  If one goes over the page - and clearly there is a reference to “encouraging” - Mr Van de Weil was counsel for Mr Benbrika at trial, and your Honours can see at line 10 “That’s right” to the suggestion about “encouraging” being the word.

With respect, because emphasis is being placed on the written submissions filed at first instance by Mr Mullaly, page 23 at line 13 is Mr Mullaly’s submission before his Honour and as his Honour quite rightly points out, take out the issue of it being outside an organisation and my friends are not pursuing that as being a correct direction, it is exactly what my friends got and, with respect, that is why there was no request for redirections.

FRENCH CJ:   Can I just ask this question, it may be a matter of parsing and precision, but the statement to the jury that “fostering can be synonymous with encouraging, or something of that nature”, does that logically leave open the possibility that “fostering” can be something else, and the something else encompassed within the notion of the ordinary English word?

MS ABRAHAM:   It is fostering the doing of a terrorist act.  So, in my submission, it does not leave open any other concept but a positive encouragement.  You might have another word that synonymous with “encouraging”.

FRENCH CJ:   I am just asking you about how one characterises the way in which his Honour put it to the jury when he says “fostering” can be synonymous with “encouraging”.  Is that an exhaustive statement, or logically does it simply say that is one possibility, there may be others?

MS ABRAHAM:   In my submission it is not saying it may be one of others in the general sense.  He is saying it is something like “encouraging”.

FRENCH CJ:   What is there about the context that leads the jury to believe, or accept, that fostering is confined to encouragement?

MS ABRAHAM:   Or a word of that nature.  In my submission, because the direction is that they have to be preparing or fostering the doing of a terrorist act.  In this instance, that is fostering or preparing the doing of a terrorist act which was with the intention of causing death or serious physical harm.  The proposed terrorist act that was being prepared or fostered was the intentional detonation of explosives or the use of firearms in the pursuit of violent jihad.  So, in my submission, what my friends have done is taken out a word absent the context in which it appears.  It is the context in which it appears that gives it, with respect, the colour and when ‑ ‑ ‑

CRENNAN J:   I think the main complaint is that the dictionary contains the meaning “be favourable to”.

MS ABRAHAM:   But, with respect - I agree, your Honour, but, with respect, the court below found that that was inapt and irrelevant and concluded at paragraph 227 at application book 908 that the jury could not have been led to conclude that that is what it meant and, with respect, that is perfectly correct in this case.  Bear in mind the court came to that conclusion having considered all the elements of the offence and, importantly, all the evidence and the way in which the case was presented by the Crown because my friend has said today, well there is a real risk – they said things favourable to the jihad, there is a real risk that they convicted on that basis.  In my submission, that is plainly not so.

KIEFEL J:   Could I just clarify something with you?  At application book 875, paragraph 111 of the reasons of the Court of Appeal, the court is referring to the sequence of submissions on the direction to be given.  It said:

The Crown next submitted that there was no textual reason why the term ‘fostering’ should be confined to the encouragement of person –

Is that correct?

MS ABRAHAM:   That is “persons outside the ‘organisation’”.

KIEFEL J:   So the limit is outside the organisation but it did not cavil with the direction as to encouragement?

MS ABRAHAM:   No, that is right.  It was outside the organisation which is the part that is now not being pressed.

KIEFEL J:   Yes, I see.

MS ABRAHAM:   Your Honours, in my submission, there is no reason to doubt the correctness of the court’s conclusion that the jury could not, in this case, have applied what were inapt and irrelevant directions.

FRENCH CJ:   You would say that even if, as a matter of strict logic, the direction given to the judge in that particular sentence “fostering can be synonymous” leaves open the possibility of other meanings of “fostering”, that they are precluded by context.

MS ABRAHAM:   Yes, the other meaning has been culled by that, so promoting might be perhaps encouraging, promoting a similar ‑ ‑ ‑

FRENCH CJ:   Well, the context being a reference to the doing of a terrorist act.

MS ABRAHAM:   Yes - which was alleged in this case to be the detonation of explosives or the use of weapons.  My friend has made the point that in this case it is suggested there was a real risk that the jury might find that they were just favourable because they were statements about being favourable.  Clearly, with respect, that was not the Crown case.  No one in that courtroom, not Crown, not any of the 12 defence counsel, not the trial judge, suggested that that would have been appropriate, and that was not the way the Crown put its case, as my friend could not below, and with respect, does not now, point to any aspect of the way the Crown put its case that gave rise to that.  The Crown case as the Court found at paragraphs 504 and 494, that is application book 991 and 994 respectively, the:

‘organisation’ existed for the purpose of readying its members to carry out violent jihad when , and if, directed so to do by Benbrika.  It therefore existed to foster, or prepare, the doing of a terrorist act or acts.

The Crown case is summarised at the beginning of the judgment in very clear and strong terms, for example, paragraph 17 at page 842.  It showed:

the organisation equipped members with the knowledge, motivation and confidence to carry out terrorist acts, or to assist others to do so.

Where there is reference in that paragraph to other acts of terrorism; New York, Washington and the like, held out “as exemplars to be admired and emulated.”  The activities included raising money to be used in the commission of terrorist acts.  There are some examples given of the sorts of conversations that were part of the evidence and that appears in the application books from 994 onwards and your Honours can see - that is just after paragraph 504 which I referred to earlier - where the court concluded that it existed:

to carry out acts of violent Jihad, as and when determined by Benbrika.

But if one looks at just snippets of the conversations that are then recorded, for example, 994 is a conversation at paragraph 507, part of what was known in the trial as the garage conversation, where there is reference to all “Allah’s merchandise is dear.”  They are stealing cars to raise money to buy equipment, amongst other things, weapons, for the commission of terrorist acts.  It is during a discussion where it is said:

you'll point a gun at a kuffar’s head and shoot him but you won’t put the stolen car here.

ER:   This is different ‑ ‑ ‑

FRENCH CJ:   All of this going to the question of the context in which - that is to say, the factual context as well as the textual context of section 100.1 in which the direction complained of was made.

MS ABRAHAM:   Absolutely, and the context in which the court below concluded that the jury could not have applied the inapt and irrelevant references in the dictionary and, in my submission, it is noteworthy that when the dictionary was read by the judge to the counsel the judge said, “Well, there is nothing in here that basically causes a problem”, it was handed to counsel and no application, not from anybody at the Bar table, so 12 defence counsel and the Crown, not one application for a redirection, “Can you tell that this favouring business, that does not apply?” 

In my submission, if there had been any perception that there was a risk that that would occur, that would have happened and so, in my submission, in the context of this case the direction is clearly correct.  The conclusions of the court as to the dictionary were well and truly open.  There is no reason to doubt the correctness of them, indeed, we say they are correct, and far from what my friend says that the jury could have found on some favourable basis, in my submission, if the jury were to be satisfied on the elements of the offence, that is including the other elements, that is just not so.  Clearly, the Crown never presented its case in that way.

FRENCH CJ:   You do not contend for any construction of the term “fostering” that would be at risk of infringing the implied freedom of political communication on the argument that is put by Mr Tehan?

MS ABRAHAM:   No, that is right, which is why it was really, in one sense, a non‑issue ultimately in the court below because it was accepted in the court below that if they considered, as they clearly have, that the jury

did not apply what they have now said is inapt and irrelevant, then there was no need to even decide the question because it just did not arise.  So, in my submission, on the conviction aspects there is no basis to grant special leave.  In relation to the sentence clearly also, in our submission, no basis to grant special leave.  When one succeeds on an appeal against sentence, that is demonstrates an error, it does not necessarily follow that the sentence is automatically reduced.  The legislation does not provide that.  The court found at 564, which is application book 1021 and 1022, about Benbrika’s actions in directing:

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 [fostering] the misconceptions and hatred which sustained their interest in the organisation and its activities, were at the high end of the scale of seriousness.

Later, in the next paragraph it refers to something:

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.

In my submission, it is well open for the court to impose the same sentence.  Those are my submissions.

FRENCH CJ:   Thank you, Ms Abraham.  Yes, Mr Tehan.

MR TEHAN:   Yes, thank you, your Honours.  In the court below the applicants contended, firstly, that the directions given by the judge on fostering were inadequate and, secondly, that the appropriate direction would have been to confine “fostering” to intentional encouragement or promotion.  The position of the Crown is epitomised by reference to page 12 of the supplementary submissions of the applicants which we have provided to the Court - this is at trial.  These written submissions were prepared in answer to Mr Mullaly’s submissions.  At paragraph 5 on page 12, the Crown position was stated as being:

The Crown does take issue with the notion that the word “fostering” should be given some meaning (not clearly defined by Mr Mullaly) different from its ordinary meaning. Had that been intended by the legislature it is to be expected that the Criminal Code would have specifically defined it.

It is not correct, with respect to our friend, to contend that the Crown were happy enough to confine it to encouragement.  That is not correct.  Our

learned friend has referred to the Crown case, what the Crown case was.  She has referred to the – the Crown case was a two‑pronged case.  It was on both planning and fostering and reference has been made to the case on planning, but as we made clear in our submissions at application book 1060 – sorry, preparing, I said “planning” – preparing - it was on two bases, preparing, fostering.  As we made clear in our submissions at application book 1060, paragraph 3.17, the prosecution’s alternative argument in relation to fostering was far more wide reaching and subtler than the case in relation to preparing, and it must be remembered that the fostering can be either fostering the organisation - fostering either directly or indirectly the doing of a terrorist act within Australia or overseas.

It is capable of being viewed as a very broad concept.  Indeed, the judge himself, the litmus test as to their error in this case is that in his ruling on the discharge application when the use of the dictionary issue arose, the judge himself said that, “It is not surprising that the jury went to the dictionary because I told them it was an ordinary English word”.  In other words, the dictionary definition, so the judge would have had it, was consistent with what he told the jury.  That being the case, there has been, in our submission, a fundamental failure to properly define, to properly confine and define a critical element of the offence in this case and special leave should be granted.

FRENCH CJ:   Thank you, Mr Tehan.  Does any of the other counsel wish to add anything?  All right, the Court will adjourn briefly to consider what course it should take.

AT 10.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.35 AM:

FRENCH CJ:   The applicants for special leave were convicted of terrorist‑related offences under the Criminal Code 1995 (Cth). The Crown case at trial, as described in the Court of Appeal, 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 term “fostering” appears in the definition of “terrorist organisation” in section 102.1(1) of the Code.  Some discussion took place at the trial concerning how that word should be explained to the jury.  Following submissions, the trial judge said to the jury:

Fostering and preparing are ordinary English words which you will understand.  You don’t need any assistance from me.  You might give them their ordinary English meanings.

He then said to the jury:

Fostering can be synonymous with encouraging or something of that nature.

This direction must be read in the context in which it was made.  That was the factual context and that of the terms of the indictment, which focused upon the doing of terrorist acts.  As a practical matter the direction did not, in our opinion, leave room for the jury to apply some wider meaning of “fostering” beyond “encouraging”.

The applicants now wish to argue that the direction was wrong and that the ordinary meaning of the word was too broad.  The Court of Appeal did not agree.  For present purposes - whether special leave should be granted - it is sufficient to observe that the terms of the direction substantially followed the request of another defence counsel who asked the trial judge to confine the meaning of the term “fostering” to “encouraging”.  This request was supported by counsel for Benbrika and Raad.  Counsel for Joud did not say anything concerning the direction.  The reason for the request is clear enough.  The direction sought was for a much narrower meaning than the meaning for which the Crown contended.  His Honour acceded to what the Court of Appeal called “the minimalist direction”.  No further direction was sought on behalf of any accused.

The applicants now contend that the jury should have been further directed by the trial judge when a copy of the Concise Oxford Dictionary was found in the jury room.  It had been used, the foreperson said, with respect to the word “foster”.  The applicants say that the dictionary direction is wider than his Honour’s direction and included the meaning “be favourable to”.

It is now contended that the trial judge should have further directed that “fostering” did not extend to “being favourable to”, but no further direction was sought.  An application to discharge the jury was made, not on the basis of the meaning that might be attributed to the term “fostering”, but because of the lack of confidence that could be held in the jury since they had disobeyed the judge’s instruction not to inform themselves by reference to things outside the courtroom.  The trial judge then gave a further direction to the jury cautioning them against such conduct. 

The explanation now proffered as to why no further direction was then sought is not convincing, particularly in the light of the forensic reason for support of the direction in the first place.  It follows that even if there were shown to be some need to confirm or clarify the meaning of the term “fostering” in the Code, the conduct of the trial of the applicants was such as to render appeals by them inappropriate vehicles for the grant of special leave for that purpose.

The further ground proposed with respect to the applicants’ convictions, which involved asserting a breach of the implied freedom of political communication, depended upon the term “fostering” being applied in the extended sense with which we have dealt. 

The applicant Benbrika also seeks special leave to appeal against sentence.  No error is identified in the reasons of the Court of Appeal, in our opinion, which would justify the grant of special leave.  The application for special leave in each matter is refused.

The Court will adjourn briefly to reconstitute for the next matter.

AT 10.39 AM THE MATTERS WERE CONCLUDED