Director of Public Prosecutions (Cth) v Adnan Karabegovic
[2013] VSCA 380
•17 December 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0203
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| ADNAN KARABEGOVIC | Respondent |
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| JUDGES | MAXWELL P, REDLICH and OSBORN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 26 November 2013 |
| DATE OF JUDGMENT | 17 December 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 380 |
| JUDGMENT APPEALED FROM | R v Karabegovic [2013] VSC 566 (Dixon J) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Terrorism offences – Possession of a thing connected with assistance in a terrorist act – Meaning of ‘connected with … assistance in a terrorist act’ – Whether reasoning in Benbrika v The Queen (2010) 29 VR 593 overruled or qualified by R v Khazaal (2012) 246 CLR 601 – Appeal dismissed – Criminal Code Act 1995 (Cth) ss 101.4, 101.5.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Rapke QC with Mr D Gurvich | Commonwealth Director of Public Prosecutions |
| For the Respondent | Mr M O’Connell SC with Ms G Morgan | Robert Stary Lawyers |
MAXWELL P
REDLICH JA
OSBORN JA:
Summary
The respondent is charged with six counts of ‘possession of a thing connected with assistance in a terrorist act’, contrary to s 101.4(1) of the Criminal Code Act 1995 (Cth) (‘the Code’). Prosecution and defence jointly sought a pre-trial ruling from the trial judge on the construction of the phrase ‘connected with … assistance in a terrorist act’, as it appears in s 101.4(1)(b) of the Code.
In Benbrika v The Queen,[1] this Court had to consider the construction of the same provision of the Code, although the offence there in question was ‘possession of a thing connected with preparation for … a terrorist act’.[2] Before the primary judge, the Crown submitted that the reasoning in Benbrika on this point should not be followed in the present case, because:
(a)it was inconsistent with the reasoning of the High Court in the subsequent case of R v Khazaal;[3]
(b)the reasoning in Benbrika was in any event plainly wrong; or
(c)there was a material difference, in the context of s 101.4(1), between ‘assistance in a terrorist act’ and ‘preparation for a terrorist act’ and the decision in Benbrika must therefore be distinguished.
[1](2010) 29 VR 593 (‘Benbrika’).
[2]Emphasis added.
[3](2012) 246 CLR 601 (‘Khazaal’).
The trial judge rejected each of those submissions, holding that he was bound to apply Benbrika and would direct the jury accordingly. His Honour delivered full and detailed reasons for his decision. The Crown now seeks leave to appeal from his Honour’s ruling. The judge certified under s 295(3)(b) of the Criminal Procedure Act 2009 (Vic) that his decision was of sufficient importance to the trial to justify its being determined on an interlocutory appeal.
We indicated at the beginning of argument that, if we were persuaded that there was serious doubt about the correctness of the decision in Benbrika, we would — with the parties’ consent — enlarge the bench, so that it was constituted as a bench of five. Such a step would, of course, be quite exceptional. The decision under challenge is a relatively recent, unanimous decision of this Court and this is, moreover, an interlocutory appeal. It would be a rare case indeed where a challenge to the correctness of a decision made on an appeal against conviction would be permitted on a pre-trial application.
In the event, the issue does not arise. For reasons which follow, we see no reason to doubt the correctness of the reasoning in Benbrika. Nor does anything said by the High Court in Khazaal cast doubt on Benbrika. His Honour was right to conclude that the reasoning in Benbrika was applicable to the case before him. Accordingly, we would grant leave to appeal but dismiss the appeal.
We should not be taken, however, to have endorsed the precise terms of the proposed direction to the jury which the judge included in his ruling. That is not the function of an interlocutory appeal. The Court drew attention during argument to certain aspects of the proposed direction which might require reconsideration. The transcript of argument is available for the assistance of the judge and the parties. The final form of the direction will, of course, depend on the evidence given at the trial.
We would add, finally, that this was a proper matter to be determined on an interlocutory appeal. Senior counsel for the Crown informed the Court during argument that, if the challenge to the judge’s ruling were unsuccessful, the viability of the entire prosecution may be in serious doubt. On that assumption, this is the very kind of threshold question — a question of fundamental importance to a trial — which Parliament intended should be open to appellate consideration before the commencement of the trial.[4]
[4]R v Wei Tang (2009) 23 VR 332, 333 [5].
The charges
As already mentioned, the offence charged is possession of a thing connected with assistance in a terrorist act, contrary to s 101.4(1) of the Code. The relevant parts of s 101.4 read as follows:
101.4 Possessing things connected with terrorist acts
(1) A person commits an offence if:
(a)the person possesses a thing; and
(b)the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c)the person mentioned in paragraph (a) knows of the connection described in paragraph (b).
Penalty:Imprisonment for 15 years.
…
(3)A person commits an offence under subsection (1) or (2) even if:
(a)a terrorist act does not occur; or
(b)the thing is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or
(c)the thing is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.
…
(5)Subsections (1) and (2) do not apply if the possession of the thing was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).
In determining the elements of an offence under the Code, it is necessary to refer back to pt 2.2 of the Code, dealing with physical elements and fault elements of offences. As his Honour correctly stated, the elements of the present offence which must be proved are as follows:[5]
[5]R v Lodhi [2006] NSWSC 584, [81]–[82] (Whealy J, whose analysis of the elements of the offence was accepted by the Court of Appeal: Lodhi v The Queen (2006) 199 FLR 303).
(a) the respondent possessed the thing alleged. This is a physical element of the offence (conduct);[6]
(b)the respondent did so intentionally. This is a fault element;[7]
(c)the thing is connected with assistance in a terrorist act. This circumstance is the second physical element of the offence;[8]
(d)the respondent knew of the connection between the thing and the assistance in a terrorist act. This is the second fault element;[9] and
(e)if the respondent adduces evidence that suggests a reasonable possibility that his possession of the thing was not intended to facilitate assistance in a terrorist act, the prosecution must negative that defence beyond reasonable doubt. This is the defence element.[10]
[6]See ss 4.1 and 101.4(1)(a) of the Code.
[7]See ss 5.6(1) and 5.2 of the Code.
[8]See s 101.4(1)(b) of the Code.
[9]See ss 101.4(1)(c) and 5.3 of the Code.
[10]See ss 101.4(5) and 13.3(3) of the Code.
The ‘thing’ in each of the six counts is a different edition of ‘Inspire’ magazine, a publication produced by Al-Qaeda in the Arabian Peninsula. A section of each magazine describes it as:
A resource manual for those who loath the tyrants; includes bomb-making techniques, security measures, guerrilla tactics, weapons training and all other jihad related activities. Informal — A disaster for the repressive imperialistic nations: The open source jihad is America’s worst nightmare. It allows Muslims to train at home instead of risking a dangerous travel abroad: Look no further, the open source jihad is now at hand’s reach.
The magazine the subject of charge 1 contains an article entitled ‘Make a bomb in the kitchen of your Mom’. That article provides a step-by-step description of how to construct a bomb from readily available ingredients. The article recommends that, for an effective explosive device, the device should be placed in a crowded area, camouflaged with something, such as cardboard, that will not hinder the shrapnel.
The Summary of Prosecution Opening refers to other activities alleged against the respondent, including the public display of banners with protest messages about the presence of Australian troops in Muslim lands, and conversations in which he is alleged to have made relevant statements about his intention to defend Islam and the duties of jihad, and to have discussed bombs and bushfires
The decision in Benbrika
As noted earlier, the charge under consideration in Benbrika was that of being in possession of a thing ‘connected with preparation for a terrorist act’. The ‘thing’ said to have been possessed was a CD containing an archive of documents.
The fourth section of the archive was entitled ‘Jihad’. It stated in bold red type at the outset:
Jihad (holy fighting in Allah’s Cause) is ordained for you (Muslims) though you dislike it, and it may be that you dislike a thing which is good for you and that you like a thing which is bad for you. Allah knows but you do not know.
This section contained a number of documents setting out the duty of Muslims to partake in violent jihad against the Kuffar. These documents included, for example, writings on fundamentalism and the Islamic stance on suicide bombings (supportive), and an article written by Osama bin Laden on the ‘lies of the Kuffar regarding Muslim youth and jihad’. There were also approximately 20 transcripts of interviews with various people including ‘Mujahid commanders’, and 13 documents on ‘History: Battles and People’. Finally, there were six documents under the heading ‘Poems and other good stuff’ which glorified war and stressed the importance of martyrdom.
This section also included a subsection entitled ‘The Mujahid’s Handbook’. The preamble said:
This was taken originally from comprehensive US Army training and combat manuals. It’s a great resources [sic] for those of us travelling to the battlefield or for those wanting to learn more on the tricks and methods used by our enemies, so that we may defeat them.
‘The Mujahid’s Handbook’ was divided into four parts; ‘Effective Camouflage’, ‘Sniper Shooting’, ‘Combat Skills’, and ‘Survival Skills’.
In that context, the Court of Appeal expressed the test for the ‘connection’ element in these terms:
What will determine whether the requisite connection exists? It seems to us that, as a matter of ordinary language, a thing cannot be said to be ‘connected with preparation for a terrorist act’ unless:
(a)a terrorist act is proposed or contemplated (whether or not a decision has been made as to what kind of terrorist act it will be);
(b)some activity in preparation for that terrorist act is under way, or is proposed, or contemplated (whether or not a decision has been made as to what kind of activity that will be) (‘preparatory activity’); and
(c)the thing is being used, or is intended to be used, in aid of that preparatory activity.[11]
[11]Benbrika (2010) 29 VR 593, 660 [315].
The Court rejected the Crown’s contention that the test of connection was an objective one:
We do not see how an inanimate object can have an ‘objective’ connection with an act of terrorism. The proposition could only be valid if the object had some property or characteristic which (independent of any person’s subjective intent with respect to the object) connected it with a terrorist act. However, even the quintessential item of terrorist equipment, a bomb, has no such necessary ‘objective’ connection with a terrorist act. A bomb may be used for one of a number of possible purposes—or for none at all. Whether a bomb possessed by a particular accused is connected with (preparation for) a terrorist act must, necessarily, depend upon the circumstances of his or her possession, and on the surrounding circumstances.[12]
[12]Ibid [314].
The Court emphasised that the characteristics of the thing would bear very significantly on whether the requisite connection was proved to have existed:
The more obviously appropriate and adapted to terrorist activity the particular thing is — for example, a suicide bomber’s belt — the more readily will the jury be able to conclude, beyond reasonable doubt, that the thing was connected with preparation for a terrorist act and, moreover, that the person in possession knew of that connection. However, for the reasons we have given, merely to identify the thing possessed as the kind of thing which a terrorist would be likely to use will never be sufficient in itself.[13]
[13]Ibid [319].
Later, the Court stated:
On this analysis, two conditions had to be satisfied before the Mansura CD could be proved to have been ‘connected with preparation for a terrorist act’. First, it had to be shown that, at the time of the defendant’s possession, someone (whether or not the defendant) was preparing (or contemplating preparing) for a proposed or contemplated terrorist act. Secondly, it had to be shown that — once again at the time of the defendant’s possession — someone (whether or not the defendant) intended that the CD be used in, or in aid of, that preparatory activity.[14]
The decision in Khazaal
[14]Ibid 662 [322].
Khazaal concerned a prosecution for an offence under s 101.5(1) of the Code, which reads as follows:
101.5 Collecting or making documents likely to facilitate terrorist acts
(1) A person commits an offence if:
(a)the person collects or makes a document; and
(b)the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c)the person mentioned in paragraph (a) knows of the connection described in paragraph (b).
Penalty: Imprisonment for 15 years.
The accused was convicted of making a document connected with assistance in a terrorist act. The document in question was an electronic book. The Crown contended that Khazaal had selected, compiled, and edited material which he downloaded from the internet, and added to it his own text by way of a dedication and a foreword.
As to whether the document was ‘connected with assistance in a terrorist act’, the judge had directed the jury as follows:
Now, this is an element that depends upon an examination of the contents of the document, nothing more, nothing less. We are only concerned about what the document says objectively. It is a matter for you to determine, because it is simply an objective factor, namely, is the document, more accurately the contents of the document, connected with assistance in a terrorist act?
The phrase ‘connected with assistance in an action or threat of action’ has no special or technical meaning. You should interpret that phrase according to its plain English meaning. If you are satisfied beyond reasonable doubt that any part of the document is connected with helping or facilitating the commission of an action or threat of action against any one of the persons that are set out in the particulars, then the Crown has proved that element of the offence.
It does not matter if the document is not connected with a specific action or threat of action, or if it is connected with more than one action or threat of action. As long as the Crown has proved beyond reasonable doubt that the document is connected with an action or threat of action of the kind specified in the charge, that is sufficient to prove this element.[15]
[15]Khazaal (2012) 246 CLR 601, 625.
On appeal to the New South Wales Court of Criminal Appeal, it was contended that the decision in Benbrika showed that the judge’s direction was inadequate. By majority, the Court rejected that contention. McClellan CJ at CL distinguished Benbrika, in these terms:
There was a particular problem in Benbrika which is not present in the present case. Because the relevant thing was an inanimate object Benbrika’s possession of it may have been innocuous. The thing alone could not determine whether there was the relevant connection. For this reason the court said that before Benbrika could be found to have committed an offence against the statute there had to be a terrorist act for which preparatory activity was, at least, in contemplation.
…
In the present case the appellant was charged with making a ‘document connected with assistance in a terrorist act’. The connection which the prosecution identified was said to be found within the document itself which described methods of assassination, being terrorist acts, organisation of effective assassination teams and identified prospective targets for assassination. There was more but this is sufficient to identify the fact that the document itself described a variety of terrorist acts from which the jury could conclude that the document was connected with assistance in a terrorist act. They were the acts contemplated by the appellant. Proof of a specific terrorist act was not required.[16]
McCallum J concluded that Benbrika was wrongly decided and should not be followed. Hall J, dissenting, agreed with the reasoning in Benbrika and held that the trial judge ought to have directed the jury consistently with that decision.
[16]Khazaal v The Queen (2011) 265 FLR 276, 301 [98], [101] (emphasis added).
The High Court agreed with the view of the majority in the NSWCCA, that the trial judge’s direction was adequate in the circumstances of the case. French CJ noted that s 101.5(1)(b) required proof of a connection between the document and the relevant activity — in that case, assistance in a terrorist act. The provision was capable of covering ‘various kinds of connections’. His Honour went on:
It is sufficient, for present purposes, to say that a document which purports to justify terrorist acts and instructs in methods of carrying them out, and identifies potential targets, is capable, as a matter of law, of answering the description ‘connected with … assistance in a terrorist act’. That was the aspect of the offence under s 101.5(1) with which the respondent was charged.
The trial judge’s direction required the jury to be ‘satisfied beyond reasonable doubt that any part of the document [was] connected with helping or facilitating the commission of an action or threat of action against any one of the persons set out in the particulars’. Taken in the context of the evidence in this case, that direction fell within the meaning of s 101.5(1)(b) properly construed. It did not authorise the jury to convict on the basis of some ephemeral or remote or tenuous connection.[17]
[17]Khazaal (2012) 246 CLR 601, 614 [34]–[35].
The plurality (Gummow, Crennan and Bell JJ) concluded that McLellan CJ at CL had been right to distinguish Benbrika. In their Honours’ view, the issue before the Court was not to be resolved by considering whether the reasoning in Benbrika, on a different section of the Code, should be applied by analogy to s 101.5(1)(b). Rather, their Honours said, the issues were to be resolved by a close examination of the trial judge’s directions:
[T]he trial judge correctly stated that whether the prosecution had proven the second element of the offence in count 1 depended on the contents of the e-book. Because the e-book contained information and instructions to possessors and others in methods of assassination of identified persons described in the e-book as ‘targets’, on any view the e-book had an obvious and direct connection with assistance in the terrorist act particularised in the indictment. The jury was not directed or encouraged to act on what the respondent described as a ‘mere remote or tenuous connection’ between the e-book and assistance in the terrorist act particularised in para 1.2 of the indictment.[18]
[18]Ibid 627 [88] (emphasis added).
Plainly enough, Khazaal did not overrule Benbrika. Nor do the judgments in the High Court raise any question about its correctness. That issue simply did not arise.
The judge’s ruling
In the present case, the judge said:
In my view, consistently with Benbrika, in Khazaal the connection between the document and assisting in an act of terrorism was not a property of the document per se. In Khazaal, the intention or purpose with respect to the document that Benbrika requires to be shown to exist for the connection element was revealed by examining its contents. The distinction between the thing itself and the function of the intention or purpose that Benbrika requires to prove the connection element in respect of an inanimate thing is neither rejected nor criticised by the High Court. Rather, the High Court concluded that in the circumstances of that trial, the direction was adequate and the resolution of the appeal did not require the application by analogy of the reasoning in Benbrika. Neither Hall J nor McCallum J’s reasoning was adopted by the High Court. Apart from preferring the reasoning of the Court of Appeal in Benbrika, I am bound by it unless bound by an applicable ratio of the High Court has overruled it, whether expressly or impliedly. In my view, that has not occurred.
The Khazaal direction would be inadequate in the present matter for the reasons given in Benbrika. Aspects of the material on the CDs were described by the court that demonstrate that its reasoning, rather than that of the High Court in approving the direction in Khazaal, is what must apply in this trial. The introductory remarks in the following passage [from Benbrika] apply to describe those parts of the ‘Inspire’ magazine to which I have been referred.
Some of the material on the CDs was clearly capable of being used in preparation for a terrorist act. We refer, in particular, to the explosives manuals and the violent jihadist propaganda intended to incite hatred against the kuffar. No doubt that material was designed, in part, to encourage others to engage in terrorist acts. However, s 101.4(1)(c) provides, as an element of the possession offence, that the person in possession of a thing ‘connected with’ preparation for a terrorist act must ‘know’ of that connection. It is difficult to see how a person can ‘know’ of such a connection unless the thing possessed is connected sufficiently closely to what is, in essence, the impugned purpose. The more tenuous the link, the more difficult it will be to infer the requisite knowledge.
Whether, in any given case, the relevant connection — and knowledge — can be inferred must inevitably involve questions of fact and degree. In some situations, possession of material such as was contained on the two CDs in Joud’s possession will, when viewed in the light of the evidence as a whole, give rise to an offence under s 101.4(1). For example, if there had been evidence that Joud had played the CDs, or either of them, to any of the other accused, and that he had done so with a view to furthering the proscribed object, namely, preparation for a terrorist act, we would have had no hesitation in ordering a retrial. There was no such evidence.
…
The reasoning in Benbrika does not, in my view, cut across the defence element in s 101.4(5). The requirement that the prosecution prove that at the time of the accused’s possession of the thing someone was preparing or contemplating preparing for a proposed or contemplated terrorist act and the thing is intended to assist in that activity does not obviate the defence that the accused had no intention to facilitate assistance in a terrorist act. The distinction is that the defence element is concerned with the absence of a subjective purpose linking possession of a thing and assistance in a terrorist act. Benbrika explains why that is so.[19]
[19]R v Karabegovic [2013] VSC 566, [71]–[74].
This analysis is unimpeachable, in our view. As his Honour pointed out, the document the subject of consideration in Khazaal was, because of its content, capable by itself of establishing the requisite connection with assistance in a terrorist act. It was, of course, a document which the accused himself had made. As senior counsel for the Crown conceded in this Court, the content of the document in Khazaal meant that each part of the Benbrika test was satisfied. That is, the document itself was capable of establishing that:
(a)a terrorist act was in contemplation;
(b)activity to assist in that terrorist act was under way or in contemplation; and
(c)the document was being, or was to be, used in aid of that activity.
In a case of that kind, it may not be necessary for the judge to make explicit mention of the matters set out in Benbrika. The trial judge in each case will need to determine, having regard to the nature and characteristics of the ‘thing’ in question, what further guidance the jury needs to be given on how the existence of the ‘connection’ is to be proved.
In the present case, as the judge said, a direction in the form approved in Khazaal would be inadequate, since there is nothing about the content of the magazines which connects them with assistance in a contemplated terrorist act — apart, of course, from the obvious fact that a magazine which provides instruction on bomb-making would be of assistance if a terrorist act involving the use of explosives were in contemplation.
His Honour concluded, further, that there was no meaningful distinction between ‘preparation’ and ‘assistance’ for the purposes of analysing what was required to be proved to establish the requisite connection. We respectfully agree.
The challenge to Benbrika
Counsel for the Crown did not challenge the first or second parts of the Benbrika test. They accepted that, before the requisite connection could be shown to exist, it would need to be established that some person (whether or not the accused) had a terrorist act in contemplation and that some activity by way of assistance in that contemplated act was under way or in contemplation. Counsel submitted, however, that the provision did not require proof of any connection between the thing in question and that activity. In the present context, counsel submitted, it did not have to be proved that anyone had in contemplation that any of the magazines possessed by the respondent would, or might, be used in the activity of assisting in the putative terrorist act. The mere possibility of such use was sufficient.
The existence of that possibility would depend simply upon whether the thing in question was suitable for use in the kind of terrorist act which was in contemplation. It followed, senior counsel for the Crown accepted, that the provision would catch any item in an accused’s possession which was capable of being turned to such use — such as a gun, a knife, a bag of fertiliser, a car, or a pressure cooker.
We reject this submission, for the reasons which the Court gave in Benbrika. Without proof of a link between the thing and the relevant activity of the kind posited in Benbrika, it is not possible to say that the thing is ‘connected with’ the activity. As Redlich JA pointed out in the course of argument, the offence is only committed if the thing in question is connected with assistance in an act of terrorism. It is not sufficient that it could be, or might be, so connected.
We do not accept that Parliament intended this provision to apply to ‘innocuous’ objects, so as to deter persons who might be aware of discussions about a possible terrorist act from possessing items which might be made use of in connection with such an act. There is nothing in the language of the provision, or in the extrinsic materials, to support that contention.
As we have said, the Crown’s submission concentrated on the third part of the Benbrika test. Adapted to the present case, it would require proof that:
the thing is being used, or is intended to be used, in the activity of assisting in the contemplated terrorist act.
It was submitted that the reference here to intention involved the impermissible importation of an additional fault element into a physical element of the possession offence. According to the submission, Parliament has specified the only fault elements which must be proved — intention under s 101.4(1)(a) and knowledge under s 101.4(1)(c).
We are not persuaded by this submission. As senior counsel for the respondent pointed out, the Code itself provides examples of physical elements defined in terms which include a mental element. He gave as an example the definition of ‘terrorist act’ itself. Section 100.1(1) states:
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.[20]
[20]Emphasis added.
Sub-paragraphs (b) and (c) of that definition require proof of intention. In Lodhi v The Queen[21] Spigelman CJ held that the definition of terrorist act was part of the offence created by s 101.4(1) and the matters set out in the definition constituted an essential element of the offence. His Honour said:
The references to ‘intention’ in each of paras (b) and (c) of the definition of ‘terrorist act’ are not fault elements of the offence. Rather they identify the character of the action that falls within (2) of the definition. This is a physical element, being a ‘circumstance’ within s4.1(1)(c) of the Criminal Code Act. Accordingly, it is not, in my opinion, an essential element of the offence that an accused charged with doing any one of the acts identified in s 101.4, s 101.5 or s 101.6 must himself or herself have the intention that the act advances a particular cause or is done with the requisite purpose of coercion or intimidation. Nevertheless, as an essential physical element, each of paras (b) and (c) should be pleaded, but no particularity is required as to the person who had the relevant ‘intention’. Of course, if the Crown was to assert that it was the applicant who had the intention, it could plead or particularise that aspect of the case. The relevant fault element is knowledge of the connection, as specified in s101.4(1)(c) …[22]
[21](2006) 199 FLR 303.
[22]Ibid 323 [90]–[91].
McClellan CJ at CL concurred, saying:
The definition of terrorist act is complex and applies to action or threat of action which has any one of a number of physical consequences (sub-s (2)). However, the action or threat of action must also be motivated by the intention identified in (b) and (c).[23]
[23]Ibid 327 [106].
The same reasoning applies by analogy to the Benbrika test. For the requisite connection to exist, it must be shown either that the thing is being used in the activity of assisting in a terrorist act or that some person (whether or not the accused) intends that it be so used. In the latter case, the existence of that intention ‘identifies the character’ of the connection required. It is not a fault element of the offence.
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